IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL. R.B CRIMINAL PETITION NO.6077/2017 C/W CRIMINAL PETITION NO.5722/2017 IN CRIMINAL PETITION NO.6077/2017 BETWEEN:
Sunil Kumar @ Silent Sunil S/o Krishnappa Aged about 36 years R/at No.S-4, Fortune Icon Apartment Jodidar Ashwathappa Farm Sahakar Nagar Bangalore-560 092. .. PETITIONER (By Sri Kiran S Javali, Adv. for Sri Younous Ali Khan and Sri Chandrashekara K, Advs.) AND:
State by Yelahanka Police Station Bangalore Represented by The State Public Prosecutor High Court of Karnataka High Court Buildings Bangalore-560 001. .. RESPONDENT (By Sri Chetan Desai, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr. No.58/2017 of Yelahanka P.S., Bengaluru city, for the offences P/U/Ss 399, 402, 120(B), 109 read with Section 34 of IPC and Sections 25, 27, 30 of Arms Act, 1959.
IN CRIMINAL PETITION NO.5722/2017 BETWEEN:
Pramod K M @ Kariappa Aged about 29 years S/o K S Machaiah R/at No.109, 1st Floor Axis Citrino Apartment Kodichikkanahalli Main Road Bommanahalli Bangalore-560 068. .. PETITIONER (By Sri Abishek N N, Adv.) AND:
State of Karnataka by Yelahanka Police Station Bangalore-560 064.
Represented by the State Public Prosecutor High Court of Karnataka Bangalore-560 001. .. RESPONDENT (By Sri Chetan Desai, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr. No.58/2017 of Yelahanka P.S., Bengaluru city and S.C.No.700/2017 pending on the file of the Principal City Civil and Sessions Judge, Bengaluru, for the offences P/U/Ss 399, 402, 120(B), 109 of IPC and Sections 25, 27, 30 of Arms Act, 1959.
These Criminal Petitions having been heard and reserved for orders, coming on for pronouncement of order this day, the Court made the following:
ORDER Since these two criminal petitions are in respect of same crime number and since common questions of law and facts are involved in both petitions, they are taken together to dispose of the same in order to avoid repetition of facts and law.
2. These petitions are filed by the petitioners- accused Nos.12 and 18 under Section 439 of Cr.P.C. seeking their release on bail of the offences punishable under Sections 399 and 402 of IPC and Sections 30 and 27 of Arms Act registered in respondent Police Station Crime No.58/2017.
3. Brief facts as per the case of prosecution are that the complainant police officer in his complaint stated that on 19.02.2017 in the night at about 1.00 ‘O’ clock, received specific information that 8-10 persons in cars gathered near the parallel road of Judicial Layout armed with weapons, planning to commit dacoity of rich passer by’s. Upon receipt of the said information, the officer along with his team and panchas reached parallel road of Judicial Layout at about 1.30 in the night and sent HC 5647 Ramesh and pancha Krishnappa to go and confirm the information by hiding behind tree, who returned after 10 minutes and confirmed that 10 persons in 3 cars armed with pistol and knife were planning to commit dacoity of passer by’s. The complainant police officer at about 1.40 in the night surrounded those persons and apprehended four among them and others escaped. Upon inquiry, they informed their names and seized a Wagon-R and Bolero vehicles, one country made pistol with 6 live cartridges, one knife, one jerkin, a pair of shoes, a helmet, a wooden club and a luggage bag and brought those four arrested persons to the police station at about 3.00 a.m. of 20.02.2017. On the basis of the said complaint, FIR came to be registered for the said offence against nine persons. Eight are specifically named in FIR and in the 9th column, it is mentioned as ‘and others’. It is the further case of prosecution that during the course of investigation, the respondent police on 25.2.2017 sought for issuance of body warrant in crime No.58/2017 of Yelahanka P.S., against this petitioner- accused No.12 and petitioner-accused No.18 in the connected petition on the basis of the voluntary statement of co-accused and they are already in custody. The respondent police invoked provision of Section 3 of KCOCA and the case was transferred to the Special Court i.e., the Principal City Civil and Special Judge, Bengaluru on the point of jurisdiction on 9.3.2017. Therefore, being aggrieved by the said action police arraying the petitioners as accused Nos.12 and 18, they have approached this Court seeking their release on bail on the ground as mentioned in ground Nos.9 to 25 in the first petition and ground Nos.13 to 31 in the connected petition.
4. I have heard the learned Counsel appearing for the petitioners-accused Nos.12 and 18 in the both petitions and the learned High Court Government Pleader appearing for the respondent-State.
5. Learned Counsel for the petitioner-accused No.12 during the course of arguments made submission that the petitioner-accused No.12 was already in the custody of Yelahanka police station in Crime No.42/2017. Therefore, it is unimaginable that accused No.12 was involved in committing the alleged offence. The name of accused No.12 is not at all forthcoming either in the complaint or in FIR. As per Section 399 of IPC, there should be preparation to commit dacoity. The date of commission of the offence was at about 1.30 a.m. on 20.2.2017, on which date and time, accused No.12 was very much in the custody of the police and being in custody of police, it cannot be said that accused No.12 was making preparation to commit the alleged offence. As per the remand application in Cr. No.42/2017, it is very clear that he was remanded to custody for 12 days earlier to the alleged incident. Referring to the requirements of Sections 399 and 402 of IPC, the learned Counsel made submission that the presence of five or more persons is required to form an assembly and then preparation to commit dacoity. Therefore, it is not applicable to petitioner-accused No.12. The learned Counsel further made submission that it is only on the basis of the voluntary statement of accused Nos.1 and 2 alleged to have been recorded on 20.2.2014, the petitioner accused No.12 has been involved in the said case. The learned Counsel submitted that even looking to the voluntary statement of accused Nos.1 and 2 also, no overt act is attributed to accused No.12 for the alleged offences under Sections 399 and 402 of IPC. Even according to the voluntary statement of accused Nos.1 and 2, the only allegation in their statement is that after their release, accused Nos.1 and 2 used to meet accused No.12 and Rohit, and they were in touch with them. Hence, the learned Counsel submitted that even considering the voluntary statement of accused Nos.1 and 2, the ingredients of the alleged offences are not attributed to accused No.12 and the provisions of KCOCA have no application to file a case as against the petitioner. The learned Counsel submitted that the accused Rohit has already filed writ petition challenging the initiation of proceedings against him invoking KCOCA and this Court has already granted interim order of stay of the said proceedings. The learned Counsel taking this Court to Section 3 of KCOCA so also definition clause under Section 2 of the said Act made submission that the said provisions are not at all applicable so far as accused No.12 is concerned and there is false implication of the petitioner in the case. He submitted that it is also the requirement as per the provisions of KCOCA that within 10 years earlier to registration of case under the said provisions, the petitioner would have been involved in two such case wherein charge sheet came to be filed, but in the case on hand, there is no such material has been placed by the prosecution to show the involvement of petitioner-accused No.12 in such cases. Hence, the learned Counsel lastly made submission that as the prosecution has not placed prima facie material as against petitioner-accused No.12, he is entitled to be granted bail by imposing reasonable conditions.
6. Learned counsel for petitioner-accused No.18 in the connected petition Crl.P.No.5722/2017 has submitted that the name of accused No.18 neither appears in the complaint nor in the FIR. Only on the voluntary statement of the co-accused he has been arrested on 5.3.2017. On 3.3.2017 accused Nos.1 and 2 said to have revealed that accused persons have purchased three live bullets and a pistol from accused No.18 and same were seized and subjected to P.F.No.22/2017. It is also the case of the prosecution that on 5.3.2017 accused No.18 has given information that the said bullets and pistol were given by Aiyappa. Later said Aiyappa and Niranjan were arrested and from them seized one Gionee Mobile, Huawei mobile, six live bullets, one loaded 0.32 inch pistol, licence book pertaining to pistol, one white colour Baleno car and two other mobile phones and the same were subjected to P.F.No.22/2017.
7. Learned counsel has submitted that there is a false implication of the petitioner-accused No.18 and the entire story put forth by the investigating officer in the remand application is false and far from truth. Petitioner at no point of time was dealing with pistol or bullets and hence, the question of supplying the same to other accused persons does not arise. The voluntary statements of the co-accused are inadmissible under law. Petitioner is a vehicle financier and hails from a respectable family having deep roots in the society. The offences alleged are not punishable with death or imprisonment for life. He is a permanent resident of the address mentioned in the petition. He is not having any criminal antecedents and he is innocent. Learned counsel for the petitioner has also submitted that petitioner is ready to abide by any reasonable conditions to be imposed by the Court. Since 6.3.2017 till date he is in custody.
Apart from the above grounds, learned counsel for the petitioner-accused No.18 has also adopted the arguments advanced by learned counsel for accused No.12 in Crl.P.No.6077/2017.
8. Per-contra, learned High Court Government Pleader referring to the charge sheet material has submitted that there is a prima facie case made out as against accused Nos.12 and 18, the petitioners herein. The materials also show that the petitioners are also involved in the alleged offence under the provisions of the Karnataka Control of Organised Crime Act, 2000 (‘KCOCA’ for short). It is his submission that accused Nos.1 and 2 have given voluntary statements and as per Section 19 of the KCOCA, their statement is also binding on the co-accused. The voluntary statements of accused Nos.1 and 2 clearly show the involvement of not only themselves, but also the petitioners herein. The offences alleged are serious in nature. The petitioners along with other accused persons were conspiring and planning to commit the murder of one Mani and to achieve the said object, they were collecting money as instructed by petitioner-Accused No.12. It is submitted that so far as accused No.12 Sunil Kumar is concerned, 17 other criminal cases are registered against him and he is a habitual offender having criminal antecedents. So far as petitioner-accused No.18 Pramod is concerned, there is a prima facie material against him regarding supplying the arms and ammunitions to the other accused persons. Hence, he submitted to reject both the petitions.
9. I have perused the averments made in both the petitions and also the entire charge sheet material produced in the case. I have also considered the oral submissions made by learned counsel in both the petitions, so also, the submission of the learned High Court Government Pleader for the respondent-State.
10. So far as petitioner-accused No.12 Sunilkumar @ Silent Sunil is concerned, the main contention of the petitioner is that as on the date of the alleged offence i.e., on 20.02.2017 he was not at all present at the spot and he was in prison in connection with Crime No.42/2017 pertaining to Yelahanka police station. Even 12 days prior to alleged incident, he was in custody. Therefore, the ingredients of Sections 399 and 402 of the IPC are not at all attracted at the first instance, because, the said offences require the personal presence of accused No.12 at the spot for the purpose of preparation to commit the said offences. The other contention of the petitioner is, the prosecution has not placed any material to show the conspiracy between petitioner-accused No.12 and the other accused persons, more particularly, accused Nos.1 and 2 are concerned.
11. In this connection, let me examine the material to ascertain whether prima facie case is made out against the petitioner by the respondent-state or not.
12. The materials placed on record shows that petitioner-accused No.12 was in custody in connection with Yelahanka police station Crime No.42/2017 by virtue of the remand order made by the jurisdictional Magistrate Court on 8.2.2017 till 21.2.2017. But it is the contention of the prosecution that this petitioner was consulted by accused Nos.1 and 2 when he was in jail and they both used to meet him in the jail premises and were conspiring to cause the murder of one Mani and also were having conversation that if they do not commit the murder of said Mani, in turn, he will commit their murder and for the said purpose, the petitioner herein used to tell accused Nos.1 and 2 to collect the money even by committing robbery.
13. The charge sheet material shows that the voluntary statements of accused Nos.1 and 2 were recorded by the police during investigation.
I have perused the voluntary statement of accused No.2 Nagaraj @ Wilson Garden Naga. The said statement shows the alleged conspiracy between accused Nos.1 and 2 and the petitioner-accused No.18 Pramod @ Kariappa with regard to committing the murder of one Mani and to collect the money to achieve the same. I have also perused the voluntary statement of accused No.1 Mohan Kumar @ Mohan. It is averred in the said statement that in connection with committing the murder of one Mani they contacted accused No.12 and one Rohith and in this regard they were getting instructions from accused No.12 Sunil Kumar and one Rohith and as per their direction, accused Nos.1 and 2 have purchased the country pistol at Gulbarga and six live cartridges, which are said to have been recovered during the course of investigation. Looking to the voluntary statement of accused Nos.1 and 2 i.e., Mohan Kumar and Nagaraj, it shows that they were having contact with petitioners herein namely, Sunil Kumar accused No.12 and Pramod @ Kariappa accused No.18. As per the provisions of Section 19 of the KCOCA, the voluntary statement made by one accused is binding on the co-accused also.
Section 19 of the Karnataka Control of Organised Crime Act, 2000 reads as under:
19. Certain confessions made to police officer to be taken into consideration.-
Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced shall be admissible in the trial of such person or co-accused, abettor or conspirator:
Provided that the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) The confession shall be recorded in free atmosphere in the same language in which the person is examined and as narrated by him.
(3) The police officer shall before recording any confession under sub-section (1) explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.
(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence.
(5) The person from whom a confession has been recorded under sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (3) along with the original statement of confession written or recorded on mechanical device without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement if any made by the accused so produced, and get the signature. In case of any complaint of torture the accused shall be directed to be produced for medical examination before a Medical Officer not below the rank of an Assistant Civil surgeon.
14. At this stage, the materials show that the petitioners herein i.e., accused Nos.12 and 18 were in continuous contact with accused Nos.1 and 2 who are the main accused in the case and are the members of the organized crime syndicate and involved in collection of money and purchasing of arms for the purpose of committing the murder of one Mani.
15. The charge sheet material also shows that petitioner-accused No.12 Sunil Kumar is involved in 17 criminal cases. The nature of the offences in those proceedings are robbery, dacoity, murder, attempt to murder etc., so also, the offence under the provisions of Sections 27 and 30 of the Arms Act. In the charge sheet material it is mentioned that the said crimes at Sl.Nos.11 to 16 are registered within ten years as on 7.3.2017. The earlier cases and the cases registered within 10 years as on 7.3.2017 are in respect of Ramnagar police station in Crime No.119/2008 pending in S.C.No.125/2010 in FTC Court at Ramnagar, Crime No.186/2009 pertaining to Yelahanka Sub-urban police station pending in S.C.No.120/2010 on the file of 8th FTC Court, Crime No.410/2009 of Hennur police station pending in S.C.No.695/2009 on the file of 14th FTC Court wherein accused No.12 is already facing the trial. These materials clearly show that the petitioner- accused No.12 is having criminal antecedents and he is a habitual offender involved in committing serious offences. The materials also show that knowing fully well that accused Nos.1, 2 and 11 are having criminal background and are involved in serious offences, this petitioner is in contact with accused Nos.1 and 2 in connection with committing the murder of one Mani.
16. So far as petitioner-accused No.18 is concerned, the charge sheet material collected prima facie shows that he is involved in supplying the arms and ammunitions illegally without having any licence or permit. In this regard, a case is registered against him in Puttenahalli police station Crime No.104/2017 for the offences punishable under Sections 143, 341, 323, 326, 427, 504, 307, 120(b) r/w Section 149 of IPC and also for the offences under Sections 3, 7, 25 and 30 of the Arms Act pending on the file of 44th ACMM Court and charge sheet is also filed in the said case and it is numbered as C.C.No.16270/2017 and it is yet to be committed to the Sessions Court.
The charge sheet material further shows that accused No.16 though involved in electronic city police station Crime No.233/2016 for the offences under Sections 143, 147, 148, 307, 302 r/w section 149 of IPC and is in the central prison at Bangalore, the petitioner accused No.18 often used to meet accused No.16 in the jail premises and as per the instructions of accused No.16, the petitioner-accused No.18 involved himself in illegal and unlawful activities with an intention to earn money and he is also in contact with accused No.2 who is the member of the organized Crimes syndicate and he has supplied arms and ammunition i.e., country pistol, live cartridges to accused No.2 without having any permission or licence.
17. Considering the charge sheet material in respect of both the petitioners-accused Nos.12 and 18, the voluntary statements of accused Nos.1 and 2 and also of the petitioners-accused Nos.12 and 18 herein, they prima facie show that the allegations made against these two petitioners are very serious in nature and they are in contact with the accused persons who are the members of organized crime syndicate and also having criminal antecedents. In case if they are released on bail, there is every likelihood that they may again involve in committing similar offences and may also threaten the prosecution witnesses. Hence, these are not the fit cases to exercise the discretion in favour of the petitioners –accused Nos.12 and 18.
Accordingly, both the bail petitions are hereby rejected.
Sd/- JUDGE CS/bkp