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2020 DIGILAW 1850 (KAR)

Mohammad Musharraf v. State Of Karnataka

2020-09-24

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the petitioners-accused Nos.4 and 5 under Section 439 of Cr.P.C. seeking bail in Crime No.142/2019 of Bhatkal Town Police Station registered for the offence punishable under Sections 143, 147, 148, 341, 120(B), 302, 201 R/W Section 149 of IPC. 2. The case of the prosecution is that complainant Mr.Mohammad Nabeel Jabali S/o Mohammad Ali Jabali gave a complaint to the Police Station that on 19.10.2019 at about 7.30 a.m. Complainants brother named Mohammad Afan came to their home from Bangalore on his friend s motor cycle. At 4.30 p.m. again he went out and complainant went to his canteen work. On the same day at 9.00 p.m. complainant s friend came near his canteen and informed that his brother is kidnapped by one Iqbal and his five other mangalorean friends. Suddenly, complainant went to the spot which is Shanubagh lodge. That the room No.118 is locked and at the same time two persons are ran away from the spot after seeing the complainant. The complainant open the door of room doubtfully, there was one person who is complainant s brother Mohammad Afan was tied and packed with cloths in sleeping position on bed and complainant was shocked and his brother was dead. After that complainant informed his father and relatives by phone call and they came to spot. Then they called ambulance and shifted the body to Manipal. It is further alleged that they suspect petitionersaccused Nos.4 and 5 and others have committed murder and he identifies them. Complainant lodged the complaint before the Bhatkal Town Police and a case came to be registered in Crime No.142/2019 of Bhatkal Town Police Station. After investigation, the Police have filed charge sheet on 14.01.2020 alleging that petitioner-accused No.1 had homo-sex with the deceased and when deceased recorded the same in his mobile and he started to blackmail him as such petitioner-accused No.1 fed up with his act and he made conspiracy with other accused to commit murder of deceased. Petitioners-accused Nos.4 and 5 have assisted the accused No.1 in committing the offence. Hence, petitioners-accused Nos.4 and 5 have filed bail application in SC.No.12/2020 and the same came to be rejected by Prl. District and Sessions Judge, Uttara Kannada, Karwar. Therefore, the petitioners-accused Nos.4 and 5 are before this Court seeking bail. 3. Petitioners-accused Nos.4 and 5 have assisted the accused No.1 in committing the offence. Hence, petitioners-accused Nos.4 and 5 have filed bail application in SC.No.12/2020 and the same came to be rejected by Prl. District and Sessions Judge, Uttara Kannada, Karwar. Therefore, the petitioners-accused Nos.4 and 5 are before this Court seeking bail. 3. Heard the learned counsel for the petitionersaccused Nos.4 and 5 and learned HCGP for respondent- State and perused the charge sheet records. 4. It is the submission of the learned counsel for the petitioners-accused Nos.4 and 5 that as per the averments of the complaint, the deceased came from Bengaluru. As per the accusations in charge sheet the deceased was residing in Bhatkal. It is his further submission that the dead body was found in room No.118 as per charge sheet. But as per inquest mahazar, body was found in room No.117. It is his further submission that as per the accusations in the charge sheet, no overt act is alleged against petitioners-accused Nos.4 and 5. It is his further submission that investigation is over, charge sheet has been filed, petitioners-accused Nos.4 and 5 are no more required for custodial interrogation. With this he prays for grant of bail. 5. Per contra, the learned HCGP submitted that petitioner-accused No.1 in conspiracy with accused Nos.2 to 7 has committed the murder of deceased Mohammad Affan. The offence committed by the petitioner-accused No.1 and others is a heinous offence. CW21 and CW22 are the eye witness to the incident. It is her further submission that if petitioners-accused Nos.4 and 5 released on bail, they will tamper the prosecution witnesses and they may flee from justice. With this, she prays to reject the bail petition. 6. Having regard to the submission made by learned counsel for the petitioners-accused Nos.4 and 5 and learned HCGP, this Court has gone through the charge sheet records. According to the complaint averments, the deceased Mohammad Affan came to Bhatkal from Bengaluru on 19.10.2019. As per charge sheet and statement of CW.21, the deceased was residing in Bhatkal searching for a job. It is the accusation in the charge sheet that the petitioner-accused No.1 had homo-sex with the deceased. On the second time, the deceased has recorded the homo-sex activity of the petitioner-accused No.1 in his mobile and started blackmailing accused No.1. As per charge sheet and statement of CW.21, the deceased was residing in Bhatkal searching for a job. It is the accusation in the charge sheet that the petitioner-accused No.1 had homo-sex with the deceased. On the second time, the deceased has recorded the homo-sex activity of the petitioner-accused No.1 in his mobile and started blackmailing accused No.1. As per the accusation in the charge sheet, the petitioneraccused No.1 was standing outside the room and accused Nos.2 to 6 took the deceased inside the room and assaulted him and committed his murder. No specific overt act is alleged against the petitioners-accused Nos.4 and 5 by CW.20 and CW21. 7. 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. 8. In a decision in the case of DATARAM SINGH Vs. 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. 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. 9. In the present case the investigation is completed and charge sheet is filed. No grounds have been made out by the prosecution to show that custodial interrogation of the petitioners-accused Nos.4 and 5 is necessary. The petitioners-accused Nos.4 and 5 are residing in the address shown in cause title is not in dispute. There are no criminal antecedents of the petitioners-accused Nos.4 and 5. The main objection of the prosecution is that in the event of grant of bail, the accused Nos.4 and 5 are likely to cause threat to the complainant and prosecution witnesses. The said objection may be set right by imposing some stringent conditions. 10. In the said facts and circumstances of the case, this Court is of the considered view that there are valid grounds for grant bail subject to conditions. Hence, I pass the following. ORDER The petition filed under Section 439 of Cr.P.C. is allowed. The petitioners/accused Nos.4 and 5 shall be released on bail in Crime No.142/2019 of Bhatkal Town P.S., 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. In view of the Covid-2019 petitioners are permitted to furnish sureties within two months. If the circumstance arise, the jurisdictional Court is permitted to extend the period for furnishing sureties. ii) The petitioners shall not indulge or tamper prosecution witnesses in any manner. iii) The petitioners shall not leave the jurisdiction of the Sessions Court without prior permission till disposal of the case. If the circumstance arise, the jurisdictional Court is permitted to extend the period for furnishing sureties. ii) The petitioners shall not indulge or tamper prosecution witnesses in any manner. iii) The petitioners shall not leave the jurisdiction of the Sessions Court without prior permission till disposal of the case. iv) The petitioners shall mark their attendance before the concerned Police Station on every first Sunday between 10 a.m. to 2 p.m. till disposal of the case.