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2020 DIGILAW 1473 (KAR)

Umesh Hanamantappa Khandoji v. State Of Karnataka

2020-07-23

SHIVASHANKAR AMARANNAVAR

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JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by accused Nos.1 and 2 under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C', for short) seeking bail in Crime No.36/2020 of Kittur Police Station registered for the offences punishable under Sections 395, 504 and 506 of the Indian Penal Code (hereinafter referred to as the 'IPC', for short). 2. The case of the prosecution is that on 11.03.2020 at about 9.30 pm, the informant Shri.Balesh Channappa Sunagar of M.K. Hubballi, went for nature call/toiled near Indian Petrol Bunk near Prerana School in M.K. Hubballi and while returning home by walk, at about 9.45 pm, two persons came on a motorcycle and stopped near him and asked him to provide the can to bring petrol to their motorcycle and he told them that he do not have any can and that the petrol bunk is situated nearby. Immediately one person threw chilli powder to his eyes and when he closed his eyes, another person held his shirt and threatened him and thereafter snatched the mobile kept in the shirt pocket and both of them left the place and went towards Itagi cross. After hearing his hue and cry, a person from his village came there and he narrated about the incident to him and gave details about the motorcycle bearing registration No.KA-25 EX 3325. 3. On registering the complaint, the police conducted investigation. Accused 1 and 2 were arrested on 20.03.2020. The bail petition filed before the Sessions Court is rejected. The petitioners-accused Nos.1 and 2 are in judicial custody till this day. 4. Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the respondent-State and perused the charge records. 5. It is the submission of the learned counsel for the petitioners that the incident has taken place on 11.03.2020 and the complaint has been filed on 16.03.2020. Hence, there is delay in lodging the complaint. He further argued that the name of the petitioners is not mentioned in the complaint. He further submitted that charge sheet has been filed on 17.06.2020 against 5 persons including the petitioners and that the Test Identification parade has been conducted thereafter, on 22.06.2020. He further submitted that investigation is completed and charge sheet is filed and that the petitioners are not required for any custodial interrogation. He further submitted that charge sheet has been filed on 17.06.2020 against 5 persons including the petitioners and that the Test Identification parade has been conducted thereafter, on 22.06.2020. He further submitted that investigation is completed and charge sheet is filed and that the petitioners are not required for any custodial interrogation. Due to the detention, the petitioners are put to great hardship. The petitioners are ready and willing to abide by the conditions that may be imposed by the Court. Hence, the learned counsel prayed for allowing the petition. 6. Per contra, learned Government Pleader submitted that the mobile of the informant has been recovered from the possession of accused No.1- petitioner No.1 herein; that the vehicle used and the other incriminating material have been seized from the possession of accused Nos.1 to 3. The petitioners have committed a heinous offence and therefore, they are not entitled for grant of bail. In the event of granting bail, the petitioners are likely to cause threat to the complainant and other prosecution witnesses. As such, the petition deserves to be rejected. 7. Having regard to the submission made by the learned counsel for the petitioners and the learned Government Pleader, this Court has gone through the charge sheet records. Even according to the complaint averments, the incident has taken place on 11.03.2020 and the complaint has been filed on 16.03.2020. Only, the registration number of the motorcycle has been mentioned in the complaint. Charge sheet has been filed on 16.06.2020. Test identification parade has been conducted after filing of the charge sheet. At this stage, it is needless to make an elaborate discussion in order to give any specific finding as to the merits, as it is not permissible while considering the bail application. 8. It is well settled that matters to be considered in an application for bail are: "(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused." 9. In a decision reported in the case of Dataram Singh v. State of Uttara Pradesh and Another, (2018) 3 SCC 22 the Hon'ble Apex Court held as under: "A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society." 10. In the present case, investigation is completed and after filing of the charge sheet, test identification parade has been conducted. Dismissal of the bail application by the Sessions Court is on the ground that the investigation is pending and presence of the petitioners is required for test identification parade. No grounds have been made out by the prosecution to show that custodial interrogation of the petitioners is necessary. The petitioners are not habitual offenders. Except one, another case is registered against the petitioners for the similar offence. They are the permanent residents of Shinganahalli, Dharwad taluk and district carrying on agriculture. The main objection of the prosecution is that in the event of granting bail, petitioners are likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions. 11. They are the permanent residents of Shinganahalli, Dharwad taluk and district carrying on agriculture. The main objection of the prosecution is that in the event of granting bail, petitioners are likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions. 11. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The petition filed under section 439 of Cr.P.C. is allowed. Consequently, the petitioners/accused Nos.1 and 2 shall be released on bail in Crime No.36/2020 of Kittur Police Station subject to the following conditions: i) The petitioners shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) each with two sureties for the like sum to the satisfaction of the jurisdictional Court. Due to 'COVID-19, the petitioners are permitted to furnish sureties within three months'. ii) The petitioners shall not indulge in tampering the prosecution witnesses. iii) The petitioners shall mark their attendance before the concerned police station on every second Sunday between 10.00 am and 2.00 pm till disposal of the case.