IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.4200/2019 Between:
Syed Niyamath @ Rehaman, S/o.Syed Ziyaulla, Aged about 28 years, R/at No.24/18, 3rd Cross, Opposite to Traverkere Park, Bismillah Nagar, Bangalore-560029. ... Petitioner (By Sri.C.H.Jadhav, Senior Counsel for Sri.Nagesh.C, Advocate) And:
State of Karnataka by Tilaknagar Police Station, Bangalore.
(Investigated by C.C.B Police) Rep. by SPP High Court, Bangalore-560 001. ... Respondent (By Sri.K.Nageshwarappa, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Cr.No.459/2015 (Spl.C.C.No.213/2016) of Thilaknagar Police Station, Bengaluru for the offences punishable under Sections 120B, 153, 153A, 307, 295A, 419, 468, 471, 420, 116 read with 34 of IPC and Section 3 of KCOCA and Section 20(b)(ii)(A) of NDPS Act.
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.1 under Section 439 of Cr.P.C., to enlarge him on bail in Crime No.459/2015 (Spl.C.C.No.213/2016) of Thilaknagar Police Station, Bengaluru for the offences punishable under Sections 120B, 153, 153A, 307, 295A, 419, 468, 471, 420, 116 read with 34 of IPC and Section 3 of Karnataka Control of Organised Crimes Act, 2000 and also Section 20 (b)(ii)(A) of Narcotics Drugs and Psychotropic Substances Act (hereinafter called as KCOCA and NDPS ‘Act’ for short).
2. I have heard Sri C.H. Jadhav, learned senior counsel for the petitioner-accused No.1 and learned High Court Government Pleader for respondent-State.
3. The gist of the complaint are that on 16.11.2015, the Police Inspector received a credible information that petitioner-accused No.1 – Syed Niyamath resident of Bismilla Nagar, Bengaluru, is involved in communal murder case and other criminal cases. Accused No.1 made call from Mobile No.8951909459 to the criminal don namely, Sheik Shakeel @ Chota Shakeel and is in constant touch with the said don. The said Sheik Shakeel @ Chota Shakeel and is in constant touch with the said don. The said Chota Shakeel instructed Syed Niyamath to kill the Hindu leaders in Bengaluru and thereby to create communal problem in the State of Karnataka and in furtherance of their plan, petitioner-accused No.1 along with his associates i.e., accused Nos.2 and 3 were making preparation to the said task and conspiracy to eliminate the Hindu Leaders to create communal violence in the city and after execution of the same, the accused persons are planning to escape from the city.
On the basis of the information, a case came to be registered. During the course of investigation, the petitioner-accused No.1 has been apprehended and now he is in judicial custody.
4. It is the submission of the learned Senior Counsel for the petitioner-accused No.1 that though the present accused has approached this Court in Criminal Petition No.7423/2018 and the said petition came to be dismissed by considering on the merits. Subsequently, accused No.2 has approached this Court in Criminal Petition No.5290/2018 and this Court by order dated 20.08.2018 has enlarged accused No.2 on bail under similar facts and circumstances. It is his further submission that accused No.3 also approached this Court in Criminal Petition No.8275/2017 and this Court by order dated 12.04.2018 allowed the petition and released him on bail. On the ground of parity, the petitioner-accused No.1 is also entitled to be released on bail. It is his further submission that since four years, there is no progress in the case and even no charge has been framed and the trial has not yet commenced. He further submitted that no such incident has taken place as contended by the prosecution and only on presumption and alleging preparation, the said case has been registered and the charge sheet has been filed. He further submitted by relying upon the decision of this Court in the case of Mallanna and others Vs. The State of Karnataka, Sirawar Police Station reported in ILR 2017 Karnataka 2044 contended that if the trial against an accused is not concluded within a reasonable time, it amounts to violation of the right of a speedy trial guaranteed under Article 21 of the Constitution. the petitioner-accused No.1 is neither involved in capital punishment and the alleged offences are not grave and serious in nature.
5. Keeping in view the proposition of law laid down by this Court, he further submitted that if the petitioner-accused No.1 retained in the jail, then his rights and personal liberty are going to be affected in this behalf. He is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.1 on bail.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that earlier, the petitioner-accused No.1 has approached this Court in Criminal Petition No.7423/2018. This Court by considering the merits of the case and as the accused is a member of the said syndicate and there is much evidence to show that he has conspired with other accused persons to commit the alleged offences has dismissed the petition. He has further submitted that name of the petitioner-accused No.1 is registered in the rowdy sheeter and Section 3 of KCOCA Act has also been invoked against the petitioner-accused No.1. He further submitted that there are no changed circumstances to re-consider the bail application. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. As could be seen from the records after dismissal of the petition by this Court accused Nos.2 and 3 have approached this Court and this Court by order a dated 20.08.2018 and 12.04.2018 has enlarged accused Nos.2 and 3 respectively on bail. Even it is the submission of the learned High Court Government Pleader that no charge has been framed and the trial has not yet been commenced and the records indicate that since four years, the petitioner-accused No.1 is languishing in jail and alleged offences are not punishable with death or imprisonment for life. This Court in the decision in the case of Mallanna and others v/s. The State of Karnataka, Sirawar Police station, ILR 2017 KAR 2044 at para No.15 it has laid down the principal that if the trial against the accused is not concluded within a reasonable time, it amounts to violation of the right of a speedy trial guaranteed under Article 21 of the Constitution. but there is an exception to the said Rule. If the accused is in custody facing capital punishment, then under such circumstances, Court must be very slow in granting the bail by invoking the provisions of Article 21 of the Constitution. But in the instance case on hand, no such cases or the Sections are involved which requires for a capital punishment. When already accused Nos.2 and 3 who are also rowdy sheeter and have been released on bail, I feel that on the ground of parity petitioner-accused No.1 is also entitled to be released on bail.
9. In the light of the discussion held by me above, the petition is allowed and the petitioner- accused No.1 is ordered to be released on bail in Crime No.459/2015 of Thilaknagar Police Station, Bengaluru for the offences punishable under Sections 120B, 153, 153A, 307, 295A, 419, 468, 471, 420, 116 read with Section 34 of IPC and Section 3 of Karnataka Control of Organised Crimes Act, 2000 and also Section 20 (b)(ii)(A) of NDPS Act, subject to following conditions:-
(i) Petitioner-accused No.1 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.
(ii) He shall be regular in attending the trial.
(iii) He shall mark his attendance before the jurisdictional police once in 15 days in between 9.00 am to 12.00 noon till disposal of the case on merits.
(iv) He shall not leave the jurisdiction of the Court without prior permission.
(v) He shall not directly or indirectly tamper or hamper with the prosecution witnesses.
(vi) He shall not involve in similar type of criminal activities during the pendency of the trial, if in case which reported, under such circumstances, the respondent-Police has liberty to apply for cancellation of the bail.
Sd/-
JUDGE GJM/RG