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2020 DIGILAW 1436 (KAR)

Mohammed Irfan @ Irfan v. State

2020-07-20

JOHN MICHAEL CUNHA

body2020
JUDGMENT John Michael Cunha, J. - Heard learned counsel for petitioners and learned SPP-II for respondent State. Petitioners are accused Nos.1 to 4 against whom charge sheet has been laid for the offences punishable under sections 120B, 341, 326, 307 and 149 of IPC. Petitioners are in judicial custody ever since the date of their arrest on 12.01.2020. 2. The application moved by the petitioners for their release on bail has been rejected by the LVI Addl. City Civil & Sessions Judge, Bengaluru (CCH.57) by order dated 02.03.2020 passed in Crl.Misc.No.1607/2020, mainly on the ground that the Investigation Officer is yet to record statements of witnesses and in the said circumstances, if the petitioners were released on bail, they might tamper with the prosecution witnesses. Learned Sessions Judge has further observed in his order that till completion of investigation and filing of charge sheet, the petitioners are not entitled for bail as claimed in the petition. 3. Since then investigation having been completed, petitioners have approached this court seeking for an order of bail, on the ground that they have been falsely implicated in the alleged offences on account of the political pressure. It is argued by the learned counsel for the petitioners that, initially FIR was registered against unknown persons and at the time of arresting the petitioners and other accused persons, the police have not followed the procedure prescribed under section 54A for identification. The police have not conducted any identification parade. The charge sheet does not contain specific overt acts against any one of the petitioners/accused. The entire case is built up on the basis of political narrative wherein the head of the Police Department had gone on record, flashing the images of accused persons along with the petitioners before the media. The victim of the alleged offence is already discharged from the hospital and there is no threat to his life due to the injuries. Petitioners do not have any criminal antecedents and thus, petitioners seek for their release on bail, on such terms and conditions as found appropriate by this Court. 4. Respondent State has filed a detailed statement of objections opposing grant of bail contending that investigation revealed that the accused belonged to Popular Front of India (PFI) and later joined SDPI Political Party. 4. Respondent State has filed a detailed statement of objections opposing grant of bail contending that investigation revealed that the accused belonged to Popular Front of India (PFI) and later joined SDPI Political Party. All the accused persons assembled at the apartment of accused No.7 and conspired to kill a leader of RSS or a leader of any Hindu Organization who came to attend a rally organized on 22.12.2019 in support of CAA & NRC. In order to execute such conspiracy and to eliminate any leader of RSS or other Hindu Organization, accused Nos.1 to 6 gathered at the meeting place i.e., opposite Town Hall. The modus operandi of accused, more particularly of accused Nos.1 to 4, was clear from the fact that they came prepared for the meeting with dangerous weapons. Accused No.2 was carrying black bag in which dangerous weapons such as long and machete were carried to the spot. But seeing mob and presence of large number of police personnel, accused Nos.1 to 4 could not execute the plan at the venue and they kept a watch on the crowd gathered in the venue. During such vigil, accused Nos.1 to 4 zeroed on the activities of the victim Varun who was distributing water bottles to the crowd and accordingly followed him in their bikes, covering their face in partially visible helmets and they had applied black colour to the number plates of two wheelers i.e., one Suzuki Access bearing No.KA-02-K2-8713 and Honda Activa bearing No.KA-04-JJ-2930. All these events are captured in CCTV installed in the nearby shop and the police have verified more than 300 CCTV footages following route in which accused Nos.1 to 4 proceeded. Further it is stated that if the petitioners are released on bail, they may hamper the investigation and tamper with the witness and evidence of the prosecution as they belong to SDPI Organization having men and material support. Accused No.1 has destroyed the evidence in order to hamper the investigation. He is an accused in Crime No.465/2016. It is further stated that though initially the police filed the charge sheet under sections 120B, 341, 326, 307 read with 149 of IPC, during further investigation, police have added sections 13, 16, 18 of the Unlawful Activities (Prevention) Act, 1967 and therefore, petitioners are not entitled for grant of bail. 5. Considered the submissions and perused the records. It is further stated that though initially the police filed the charge sheet under sections 120B, 341, 326, 307 read with 149 of IPC, during further investigation, police have added sections 13, 16, 18 of the Unlawful Activities (Prevention) Act, 1967 and therefore, petitioners are not entitled for grant of bail. 5. Considered the submissions and perused the records. The substance of accusations in column No.17 of the charge sheet reads as under:- 6. Eventhough learned SPP-II vehemently argued that the petitioners herein are the members of SDPI Organization, yet in the charge sheet nowhere it is stated that the petitioners are the members of SDPI Organization. On the other hand, in column No.17 it is stated that all the accused belong to (Prominent Organized Criminal Organization). According to the prosecution, the petitioners and other accused persons were engaged in criminal conspiracy to prevent the rally organized by certain Hindu Organizations and to murder any Hindu leader participating in the said rally to be held on 22.12.2019. The records indicate that the victim was not a leader of Hindu Organization. According to the victim/complainant, he is a mere RSS worker. It is not the case of the prosecution that there was any conspiracy to murder any member of RSS. The statements made in the complaint indicate that the RSS rally was organized by Sri.Thejasvi Surya and the complainant/victim had attended the said rally. There is nothing in the complaint to indicate that the rally was organized in support of CAA & NRC. It is only in the course of investigation, the Investigating Agency has come up with the theory that the alleged incident had taken place in furtherance of the conspiracy hatched by the petitioners to stop the pro-CAA & NRC rally thereby giving a political colour to the incident. Even otherwise, there is total ambiguity in the object and purpose of the alleged conspiracy. 7. Be that as it may, according to the complainant, during the occurrence, he was riding a Bounce Two-Wheeler which was booked by him. Surprisingly, the registration number of the said vehicle is not disclosed in the FIR. The spot mahazar which is stated to have been conducted on the very same day between 16.30 to 18.00 hours (page Nos.33 to 41 of the charge sheet) does not indicate the presence of any Bounce twowheeler at the spot. Surprisingly, the registration number of the said vehicle is not disclosed in the FIR. The spot mahazar which is stated to have been conducted on the very same day between 16.30 to 18.00 hours (page Nos.33 to 41 of the charge sheet) does not indicate the presence of any Bounce twowheeler at the spot. In this mahazar, it is stated that there were blood stains on the left side door of Maruti Van bearing No.KA.05.AD.2362 and on the shutters of a shop which is contrary to the version narrated in the FIR. These aspects go to show that a deliberate attempt has been made to suppress the genesis of the incident. Apparently with this end in view, a copy of the seizure mahazar is appended to the charge sheet wherein it is stated that a TVS Bounce two-wheeler bearing No.KA-51- AE-3138 was produced by PC 15769 and the same was seized in the police station in the presence of the panchas under a panchanama which is stated to have been drawn up on 22.12.2019 between 18.15 hours to 19.00 hours. But as already noted above, the spot sketch which is stated to have been prepared on 22.12.2019 between 16.30 and 18.00 hours does not depict the said vehicle at the spot of occurrence. That apart in the MLC extract the place of assault is shown as J.C. road and the weapon used for the assault is mentioned as knife whereas in the charge sheet it is alleged that the complainant was assaulted with longs and choppers. These contradictions need to be taken into account while considering the case of the petitioners for grant of bail. 8. Another aspect to be noted is that initially, FIR was registered against unknown persons. According to the complainant, 4 5 persons came in two-wheelers and hit his two-wheeler from behind and indiscriminately assaulted him with chopper and longs on the back of his head, back and left side of his underarm. The registration numbers of these vehicles are not disclosed in the statement of the complainant and even the witnesses examined by the prosecution on the date of occurrence did not disclose the registration numbers or the identifying features of the vehicles used for commission of the offence. The registration numbers of these vehicles are not disclosed in the statement of the complainant and even the witnesses examined by the prosecution on the date of occurrence did not disclose the registration numbers or the identifying features of the vehicles used for commission of the offence. Though in the course of investigation, a Suzuki Access bearing No.KA.02.K2.8713 and a Honda Activa two-wheeler bearing No.KA.04.JJ.2930 were seized by the Investigating Officer, it is yet to be ascertained by the prosecution that the said vehicles were in fact used for commission of the offence. In the absence of clear evidence to show that, out of seven accused persons, which of them had arrived to the spot in the twowheelers, merely with the aid of section 120B of IPC, it cannot be said that accused Nos.1 to 4 are the perpetrators of the alleged offence. That apart, in view of the specific case of the prosecution that the assailants had covered their face in partially visible helmets and that they had applied black colour to the number plates of two wheelers in which they had arrived to the spot, even the identity of the assailants and the identity of the vehicles used for the commission of the offence has to be established only during trial. 9. From a reading of the objection statement filed by respondent, it could be gathered that the identity of accused Nos.1 to 4 has been ascertained on the basis of the physical appearance of the accused. In the said circumstance, in the absence of test identification parade, it is difficult to hold that the prosecution has made out a prima facie case to show the involvement of accused Nos.1 to 4 in the alleged assault. In view of these glaring discrepancies and various other circumstances noticed in the charge sheet which I do not propose to discuss in detail at this stage lest it would prejudice the trial, I do not find any justifiable reason to extend the custody of the petitioners. 10. Insofar as the argument of learned SPP-II regarding the provisions of the Unlawful Activities (Prevention) Act, 1967 (for short "UA(P) Act") are concerned, no material is produced before the Court to show that the petitioners are charged with schedule offences under the UA(P) Act. 10. Insofar as the argument of learned SPP-II regarding the provisions of the Unlawful Activities (Prevention) Act, 1967 (for short "UA(P) Act") are concerned, no material is produced before the Court to show that the petitioners are charged with schedule offences under the UA(P) Act. Investigation in the case is conducted by the Police Inspector of Kalasipalya Police Station and not by the Officer contemplated under section 43 of the UA(P) Act, 1967. Sanction under section 45 of the UA(P) Act is not produced. The argument appears to have been advanced without any supporting material obviously with a view to frustrate the right of the petitioners to bail to which they are otherwise entitled to for the various reasons discussed above. As a result, the petition is allowed. i) Petitioners/accused Nos.1 to 4 are ordered to be enlarged on bail on furnishing bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) each with two sureties each for the likesum to the satisfaction of the jurisdictional court. ii) They shall appear before the court as and when required. iii) They shall not threaten or allure the prosecution witnesses in whatsoever manner. iv) They shall not get involved in similar offences. v) They shall not leave the territorial limits of the Trial Court without prior permission of the Trial Court. It is made clear that the discussions and observations made in this order are limited to the consideration of this petition and it shall no way influence or affect the trial of the accused before the Trial Court.