IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7423/2018 BETWEEN:
Syed Niyamath @ Rehaman, S/o Syed Ziyaulla, Aged about 31 years, R/at No.24/18, 3rd Cross, Opposite to Traverkere Park, Bismillah Nagar, Bengalurur – 560 029.
(By Sri. C. R. Raghavendra Reddy, Advocate) ...Petitioner AND:
State of Karnataka By Tilaknagar Police Station, Bengaluru.
(Investigated by C.C.B. Police) Rep by SPP High Court, Bengaluru – 560 001. ...Respondent (By Sri. H.S. Chandramouli, SPP for Smt. Namitha Mahesh B.G., 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.459/2015 of Tilaknagar Police Station, Bengaluru and in Spl.C.
No.213/2016 pending on the file of the Principal City Civil and Sessions Judge, Bengaluru for the offence p/u/s 120B, 153, 153-A, 295-A, 307, 419, 468, 471, 420 and 116 read with Section 34 of IPC beside Section 3 of Karnataka Control of Organized Crimes Act, 2000 and Section 20(b)(ii)(A) of N.D.P.S. Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. seeking his release on bail in Crime No.459/2015 of Thilaknagar Police Station for the offences punishable under Sections 120(B), 153, 153A, 307, 295A, 419, 468, 471, 420, 116 read with Section 34 of Indian Penal Code, 1860, Section 3 of Karnataka Control of Organized Crimes Act, 2000 and also Section 20 (b)(ii)(A) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for brevity referred to as IPC, KCOCA and NDPS Act, respectively).
2. I have heard the learned counsel for the petitioner and learned Special Public Prosecutor along with learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is 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 one criminal don namely, 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, 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 counsel for the petitioner that already the charge sheet has been filed and since three years and five months, the petitioner/accused No.1 is languishing in jail and his presence is not required for the purpose of further investigation or interrogation. It is further submitted that already accused Nos.2 and 3 have been released on bail. On the ground of parity, the petitioner/accused No.1 is also entitled to be released on bail. Further it is submitted that only connecting link which has been made against the petitioner/accused No.1 is that of the mobile No. 8951909459. But the said mobile phone is standing in the name of one Lakshminarasamma and the said Lakshminarasamma has not been examined by the Investigating Officer and her statement has also not been recorded. Further it is submitted that under the similar facts and circumstance, when accused Nos.2 and 3 have been already released on bail, there is no conspiracy between the accused Nos.1 to 3. Under such circumstance, Section 3 of the KCOCA is not attracted. It is further submitted that 150 grams of Ganja has been seized from the possession of the petitioner/accused No.1, which is not a commercial quantity. The alleged offences are not punishable with death or imprisonment for life. The petitioner/accused No.1 is ready to abide by the conditions imposed on him by this Court and ready to offer surety. On these grounds, he prayed to allow the petition and to release the petitioner/accused No.1 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and by filing the detailed statement of objections submitted that the petitioner/accused No.1 is a habitual offender and as against him three rowdy sheets have been opened. It is further submitted that accused No.1 came in contact with accused No.5 when he was languishing in jail therein, they have transferred several SMS contacts and 41 conversations and the said conversation clearly go to show that they were having a motive to eliminate the Hindu Organization Leaders to create communal violence in the city. It is further submitted that the petitioner/accused No.1 is the member of syndicate and also as against accused Nos.4 and 5, the provisions of KCOCA has been invoked and the petitioner/accused No.1 being the member of the said syndicate, he is also liable to be convicted under Section 3 of the KCOCA. She further submitted that the ground of parity cannot be exercised, which has been given in respect of accused Nos.2 and 3. She further submitted that if the petitioner/accused No.1 is released on bail, he may indulge in similar type of criminal activities.
6. It is the submission of the learned Special Public Prosecutor that the provisions of Section 439 of Cr.P.C., cannot be taken into consideration in the same manner like other offences. When accused is charge sheeted under KCOCA, the provisions of Section 439 of Cr.P.C., stands in different footing and in different angle. By substantiating the arguments of learned High Court Government Pleader, he prays to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
8. As could be seen from the contents of the complaint and other materials, it indicate that on the basis of the SMS messages transmitted from the mobile phone No. 8951909459 to the mobile phone of accused No.5 and the conversation itself clearly go to show that they were intending to eliminate the Hindu Organization Leaders. It is the specific contention of the learned counsel for the petitioner that the said mobile does not stand in the name of accused No.1 and it stands in the name of one Lakshminarasamma and she has not been examined by the Investigating Officer. But it is the specific contention of the learned High Court Government Pleader that there are material to show that the petitioner/accused No.1 was using the said mobile in the name of Lakshminarasamma and that the said mobile phone has obtained the said phone number by playing fraud and forging documents of one Lakshminarasamma, that is the matter which has to be considered and appreciated only at the time of trial. When there is serious allegations as against the petitioner/accused No.1 stating that he is a habitual offender, has also been registered in a rowdy sheeter and Section 3 of the KCOCA has also been invoked as against the petitioner/accused No.1. As against Accused Nos.4, fourteen cases have been registered and as against accused No.5, eight cases have been registered. Under such circumstance, the conditions enumerated in the KCOCA also made applicable in this case.
9. Under such facts and circumstances, when the petitioner/accused No.1 is a member of the syndicate of the said organization, merely because three years and five months he is languishing in jail, is not a ground to release the petitioner/accused No.1 on bail. That too, when prima-facie material is there as against him for having involved in the said crime, I feel that it is not a fit case to release him on bail. Hence, petition stands dismissed.
VBS Sd/- JUDGE