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2019 DIGILAW 644 (KAR)

Mahesh v. State of Karnataka

2019-03-14

H.P.SANDESH

body2019
ORDER : H.P. Sandesh, J. 1. Heard the arguments of petitioner's counsel and the HCGP for respondent State. 2. This bail petition is filed by the accused No. 7 under section 439 of Cr.P.C., seeking his release on bail for the alleged offence punishable under sections 302, 353, 307 read with section 34 of IPC, section 25, 27 of Indian Arms Act, 1959, registered in respondent Police Station Crime No. 245/2013. After the investigation, the police have also filed the charge sheet for the offence punishable under sections 302, 307, 353, 120B, 212, 201, 384, 388 read with section 149 of IPC and under section 3, 25(1b)(c) of Indian Arms Act, 1959 and also under section 3(1)(i), 3(1)(ii), and 3(2), 3(4) of the Karnataka Control of Organized Crime Act, 2000 and now the matter is pending before the Special Court, Belagavi. 3. The factual matrix of the case is that the complainant is working as a police constable since 13 years at Karwar district police and higher officials appointed him as gunman to the deceased Ramachandra Narayan Naik, aged about 58 years, who was a businessman and residing in K.C. Road Palace, Ankola. The routine of the said R.N. Naik is that, he would leave the house and come back around 1.30 p.m. for lunch and around 4-6 p.m. he would go out from the home. During the said time the complainant used to accompany as a gunman and the department had provided 9 mm pistol and 10 bullets. 4. On 21.12.2013, the deceased R.N. Naik came out of the house along with complainant and CW. 74 in his Chevrolet Caption car bearing No. GA-07/E-3777 and they went to attend a program in Urdu School. When the function was over, the deceased left at about 11.30 a.m. to his bank namely Dwaraka Souharda Credit Co-op. Bank. CW. 74 and the complainant went outside the bank. At about 1.30 p.m. after finishing the work, the deceased sat in his car to go home for lunch. During that time two buses came in opposite direction creating traffic jam. Due to the same, the complainant was not able to sit in the car. Suddenly one person came back right side of the car and fired from his pistol on R.N. Naik. At that time the complainant also fired from his pistol towards that person, but he escaped and ran towards the bus stand. Due to the same, the complainant was not able to sit in the car. Suddenly one person came back right side of the car and fired from his pistol on R.N. Naik. At that time the complainant also fired from his pistol towards that person, but he escaped and ran towards the bus stand. At that time three persons were waiting near Parijata Hotel, in Maruti Omni Car and they tried to pull that person into the Maruti Omni Car. The complainant again fired from his pistol and again hearing the sound of firing, all the three persons ran away from the spot. 5. The complainant chased the person who fired R.N. Naik at the entrance of Ankola bus stand and that man also fired back at the complainant. The complainant escaped that fire and fell down and for self defence the complainant also fired from his pistol. Due to the said shot, that man fell down and the complainant sent that man along with police to the hospital and thereafter the complainant came near R.N. Naik's car. During that time the car driver and public had shifted the injured to the hospital. The complainant went and saw R.N. Naik. He sustained bleeding injury on the right side chest below the neck. The doctor also confirmed that due to the bullet shot the victim succumbed to the injuries. Thereafter the complainant went and saw the spot. The van was still there in the bus stop, the Maruti Omni Car bearing No. CT-7767, the person who fired at R.N. Naik had also succumbed to death in the hospital due to gun shot. 6. The complainant after verifying the driving licence came to know that his name was Vivek Upadhyaiah son of Vijay Kumar Prayak, resident of Kithapura Varanasi, Uttar Pradesh. The deceased Vivek Upadhyaiah and three persons had conspired and murdered R.N. Naik with the pistol and also obstructed to do the duty. Thereafter the complainant filed a complaint against the deceased and other three persons. Based on the complaint, police have registered a case. During the course of investigation it was come to know about the involvement of other accused in eliminating the deceased R.N. Naik and hence in all 16 persons have been charge sheeted for the offence stated supra. 7. Thereafter the complainant filed a complaint against the deceased and other three persons. Based on the complaint, police have registered a case. During the course of investigation it was come to know about the involvement of other accused in eliminating the deceased R.N. Naik and hence in all 16 persons have been charge sheeted for the offence stated supra. 7. The main contention of the petitioner in the petition is that, only based on the statement of co-accused, this accused has been implicated in the case and there are no any material other than the statement of co-accused to implicate this petitioner and there is no any value at all in the eye of law with regard to the statement of co-accused. It is also contended that the accused was in jail and there is no overt act attributed to him in committing the homicidal death of the deceased. The confession statements of accused persons do not have any evidentiary value. The accused No. 7 was taken to custody and he was in the custody of police for about almost one month. He has not given any confessional statement before the police saying that it would be incriminating material against him. The other contention of the petitioner that he is in jail from 2002 till date, almost 17 years has been spent and he has been convicted in one of the case and though the prosecution relies upon a number of cases, in almost four cases the accused has been acquitted and other cases are pending before the Court and he is in prison almost from last 19 years. There is no any reasonable material against this petitioner and he is an innocent and he has not committed any offence. 8. In support of his contention the counsel for the petitioner relied upon the judgment of the Apex Court reported in (1964) 6 SCR 623 and equivalent judgment reported in AIR 1964 SC 1184 between Haricharan Kurmi vs. State of Bihar and brought to the notice of this Court paragraphs No. 12 and 13 with regard to the confessional statement of the accused and value of the confessional statement. The counsel also relied upon the judgment of the Apex Court reported in (2012) 1 SCC 40 , between Sanjay Chandra vs. Central Bureau of Investigation, with regard to consideration of the bail application is concerned. The counsel also relied upon the judgment of the Apex Court reported in (2012) 1 SCC 40 , between Sanjay Chandra vs. Central Bureau of Investigation, with regard to consideration of the bail application is concerned. The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The very object of bail has to be taken note of when the liberty of a person is curtailed while exercising the discretionary power. 9. The counsel also relied upon an order of this Court passed in Crl.P. No. 201312/2018 and relying upon the said order the counsel contends that in a similar set of facts, this Court had granted bail in favour of the accused and this case is also similar to the facts and circumstances of the case in which this Court has considered the same and hence prayed this Court to enlarge him on bail. 10. Per contra, the HCGP in his arguments he vehemently contended that by filing his statement of objection, contended that there are several cases against this petitioner, totally 9 cases and though in 3-4 cases he was acquitted, the HCGP has furnished the details of offence in Crime No. 89/2011 of Mangaluru East P.S., Crime Nos. 105/2001, 108/2004, 270/2004, 74/2005 of Sakaleshpur Town P.S. In respect of Crime No. 64/2000 of Nuggehalli P.S., the HCGP contends that in the said case this petitioner is convicted for life sentence and also crime No. 245/2013 of Ankola Police station. Apart from that one more case is pending before the Shivamogga Court. 11. The further contention of the HCGP is that the prosecution has invoked the special enactment of KCOCA offence and section 2(e) is with regard to organized crime and this petitioner is involved in committing the continuous criminal activities and he is also the member of the organized crime syndicate and the present case is also for the offence punishable under section 302 of IPC. There were 16 accused persons and out of that accused Nos. There were 16 accused persons and out of that accused Nos. 13, 14 and 15 were not apprehended and several accused persons have moved the application before this Court and none of the accused persons are enlarged on bail having considering the gravity of the offence and also the nature of the crime involved in the case. 12. Further contended that this accused is closely associated with accused No. 9 and further statement of CW. 105 is recorded and CW. 105 in his statement recorded under section 164 of Cr.P.C. has categorically made statement that on instructions of this petitioner, he got released accused Nos. 1, 3 and 4 and at the instance of this accused Maruti Van, which was used in the crime also provided to the accused persons and on instructions of accused No. 7 only arms are also supplied. Accused Nos. 10 and 12 have also made statement in this effect and statement of accused Nos. 3 and 4 is also clear that accused No. 7 played main role in committing the murder of R.N. Naik. 13. Apart from that, accused No. 9 has also made statement in TV9 that he only eliminated the deceased R.N. Naik and others who have not made payment to him would also face the same consequence and accused No. 9 only assigned the work to this petitioner over telephone. The HCGP also contends that CW. 104 and 106 also in their statement stated that conspiracy was made in jail and CW. 107 also makes statement with regard to payment of money for using the said money for the purchase of vehicle and also for arms and the amount is paid by accused No. 10. It is further contention that for having considered the material collected by the prosecution, it is a clear case of involvement of this petitioner in the crime that too for the offence under the special enactment of KOCA Act and also committed the murder of a businessman, who is the resident of Ankola and hence it is not a fit case to exercise the discretion under section 439 of Cr.P.C. 14. The HCGP also relied upon the orders of this Court passed in Crl.P. No. 100454/2017 C/w. Crl.P. No. 100350/2017 filed by accused Nos. 10 and 16. So also he relied upon the order passed in Crl.P. No. 101788/2017 filed by the accused No. 10. The HCGP also relied upon the orders of this Court passed in Crl.P. No. 100454/2017 C/w. Crl.P. No. 100350/2017 filed by accused Nos. 10 and 16. So also he relied upon the order passed in Crl.P. No. 101788/2017 filed by the accused No. 10. So also relied upon the order passed in Crl.P. No. 102268/2017 filed by this petitioner earlier and it was withdrawn and subsequently this petitioner also moved one more petition in Crl.P. No. 3833/2018 and the same also came to be dismissed. The HCGP also relied upon the order passed in Crl.P. No. 100782/2018 filed by accused No. 13 which also came to be dismissed. Further he also relied upon Crl.P. No. 101057/2015 filed by accused No. 5 and relying upon these orders he contends that this Court in respect of other accused persons also considered the matters on merits and dismissed the bail petitions having considered the gravity of the offence and nature of allegations made against the accused persons and contend that it is not a case for exercising the powers under section 439 of Cr.P.C. 15. Having heard the arguments of the petitioner's counsel and also the HCGP, this Court has to examine whether this Court can exercise the powers under section 439 of Cr.P.C. to grant regular bail to the petitioner in the case on hand. 16. Before appreciating the factual aspects of the case is concerned, no dispute with regard to the fact that this petitioner is life convicted in Crime No. 64/2000 which is registered as S.C. No. 120/1998 and he was convicted for the offence punishable under section 302 of IPC by the District Court, Hassan, and still he is undergoing the sentence. 17. The main contention of the petitioner's counsel is that he is in jail from last 19 years and there is chance of getting reformation if he has been enlarged on bail and also contends that there is no prima facie material against this petitioner to keep him in custody in this matter and hence he may be enlarged on bail. The counsel further contends that the co-accused statement cannot be relied upon and there is no evidentiary value in respect of the same. 18. The counsel further contends that the co-accused statement cannot be relied upon and there is no evidentiary value in respect of the same. 18. It has to be noted that no doubt the Apex Court in the judgment referred to by the petitioner's counsel held that evidentiary value of the material placed by the prosecution also has to be taken note of while keeping the accused in custody and also in the judgment of Sanjay Chandra vs. Central Bureau of Investigation (supra), the Apex Court considering the object of bail it is held that bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. With regard to the effect of consideration of bail and object of granting of bail has to be taken note of it. It is neither punitive nor preventative as held by the Apex Court. 19. However, the Court has to take note of the antecedents of the accused who approaches the Court when he seeks bail on the ground of liberty. The Court also to consider the material on record also. The petitioner's counsel did not dispute with regard to the fact of registration of 9 cases against this petitioner and also did not dispute the fact that he is life convict and he is in the prison and undergoing the sentence. He may be in prison from last 19 years, but question of consideration of remission is also based on the report of the committee constituted for consideration of the same and when the allegation is made against the accused that he indulged in committing the crime, and operating in the jail itself making phone calls and involved in other crime that too with the persons who were his jailmates earlier and when the specific allegation is made against this petitioner and statement of CW. 105 is recorded under section 164 of Cr.P.C. and the very CW. 105 is the Advocate, who made the statement before the Magistrate that on the instructions of this petitioner only he got released accused Nos. 1, 3 and 4, who are the prime accused persons in this case. 20. 105 is recorded under section 164 of Cr.P.C. and the very CW. 105 is the Advocate, who made the statement before the Magistrate that on the instructions of this petitioner only he got released accused Nos. 1, 3 and 4, who are the prime accused persons in this case. 20. This crime is also mainly committed by accused No. 1, who shot dead immediately after he shot dead the victim R.N. Naik and also it is specific that the other allegation against this petitioner is that he not only provided Maruti Van, which is used for commission of the offence and also the allegation against this petitioner that at the instance of this accused/petitioner only arms are supplied and when the said allegations are made against this petitioner in the statement of number of witnesses, the Court has to take note of the antecedents of crime of the petitioner. 21. Having considered the material on record, though it is the contention of the petitioner's counsel that there are chances of reformation if he is enlarged on bail, at this stage this Court do not expect the same from the petitioner when he is allegedly indulged in committing serious offence that too sitting in the jail operating the series of criminal activities with the earlier jailmates and question of reformation also subject to the circumstances. Having taken note of the criminal antecedents and other material available before the Court, particularly the statement of CW. 105, who made the statement that at the instance of this petitioner he got released on bail accused Nos. 1, 3 and 5, this Court does not find any merit to exercise the discretion in favour of the petitioner to grant bail. 22. In view of the discussions made above, this court proceed to pass the following: ORDER The bail petition is dismissed.