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2020 DIGILAW 1886 (KAR)

Mohammed Shoaib v. State Of Karnataka

2020-09-29

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the petitioner-accused No.6 under Section 439 of Cr.P.C. seeking bail in Crime No.55/2020 of Hubballi Sub-Urban Police Station registered for the offence punishable under Sections 143, 147, 148, 302 r/w Section 149 of IPC and Section 3(2)(v) of SC and ST(POA) Act. 2. The case of the prosecution is that one Krishna Kademani, the father of the deceased Lokesh has filed the complaint. In the complaint, it is alleged that his son Lokesh in earlier point of time used to tell him that his friends 1. Sagar Dabade-accused No.1, 2) Siddu Joladadagi-accused No.2 3) Kiran Honnalli-accused No.3, 4) Rajat Naik-accused No.5 and Sharukh Gutti-accused No.4 often and again threatening him to kill him. That on 28.07.2020 at about 8.30 p.m when the complainant sitting in his home, his son s friend Rajesh S/o Basavaraj Ambiger came with blood stained clothes and on enquiry Rajesh revealed that at about 7.30 p.m. himself and deceased Lokesh were standing with other friends near Gynan Bharati School. At that point of time accused No.1- Sagar Dabade with two other persons came on their bikes and taken out lethal weapons. Seeing them deceased Lokesh started running towards Krishna Kalyan Mantapa. They followed Lokesh. Rajesh too followed them and at that time beside Krishna Kalyan Mantapa they stabbed Lokesh. Rajesh started screaming and tried to rescue Lokesh. They threatened to finish him if he comes in their way. Hence, he stepped back and started screaming loudly for help. Nearby house people started gathering and as such they fled away from spot with weapons, the other two persons standing at a distance. Since, blood was oozing from chest and stomach of Lokesh, he stopped an auto and took Lokesh to KIMS. However, the doctors declared him dead. Complainant and Rajesh visited the KIMS Hospital and thereafter, lodged complaint against five person in Hubballi Sub-urban Police Station. The petitioner came to be arrested on 29.07.2020. He has filed bail application before II Addl. District, Sessions and Special Judge, Dharwad and the same came to be rejected by order dated 01.09.2020. Therefore, the petitioneraccused No.6 is before this Court seeking bail. 3. Heard the learned counsel for the petitioner-accused No.6 and learned HCGP for respondent-State. 4. The petitioner came to be arrested on 29.07.2020. He has filed bail application before II Addl. District, Sessions and Special Judge, Dharwad and the same came to be rejected by order dated 01.09.2020. Therefore, the petitioneraccused No.6 is before this Court seeking bail. 3. Heard the learned counsel for the petitioner-accused No.6 and learned HCGP for respondent-State. 4. It is the submission of the learned counsel for the petitioner-accused No.6 that the name of the petitioner accused No.6 is not mentioned either in the complaint or in the FIR. Petitioner-accused No.6 came to be arrested by Police when he was along with accused Nos.1 to 5 in Form House. It is his further submission that in the remand application, no allegation is made against petitioneraccused No.6. It is his further submission that in the complaint and FIR only names of accused Nos.1 to 5 have been mentioned. The eye witness Rajesh has stated that three persons have assaulted and two persons were standing near. It is his further submission that there is no case against this petitioner accused No.6. With this he prays to allow the bail petition. 5. Per contra, the learned HCGP submitted that accused No.6 was found in the company of accused Nos. 1 to 5 in the form house when they were arrested and therefore, he was secured and produced before the Magistrate and he was remanded to judicial custody. It is her further submission that Investigating Officer has recorded further statement of CW.1 who has stated regarding presence of accused No.6 on the spot holding talvar. Mobile phone of the accused No.6 has been seized from his possession. No other articles have been seized from the possession of the accused No.6. It is her further submission that investigation is still in progress and if the petitioneraccused No.6 is granted with bail, he will hamper the investigation and tamper the prosecution witnesses and flee from justice. With this, she prays to reject the bail petition. 6. Having regard to the submission made by the learned counsel for the petitioner-accused No.6 and the learned HCGP, this Court has gone through the FIR, Complaint and remand application. One Rajesh is stated to be an eye witness to the incident. The said Rajesh reveals the name of five persons before the complainant. 6. Having regard to the submission made by the learned counsel for the petitioner-accused No.6 and the learned HCGP, this Court has gone through the FIR, Complaint and remand application. One Rajesh is stated to be an eye witness to the incident. The said Rajesh reveals the name of five persons before the complainant. The complainant filed complaint against five persons who have been arrayed as accused Nos.1 to 5 in the FIR. The name of accused No.6 is not mentioned either in the FIR or in the complaint. Eye witness Rajesh has not stated the presence of accused No.6 at the time of incident before complainant. No overt act is alleged against the petitioner-accused No.6. In the remand application also there is no over act alleged against petitioner-accused No.6. 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 still in progress. The petitioner-accused No.6 has been arrested on 29.07.2020 and no grounds have been made out by the prosecution to show that custodial interrogation of the petitioner-accused is necessary. The petitioner-accused No.6 is aged 19 years. He is a student and if he is detained in judicial custody, his education carrier will be affected. There are no criminal antecedents of the petitioneraccused No.6. The petitioner-accused No.6 is residing in the address shown in the cause title and it is not disputed. The main objection of the prosecution is that in the event of grant of bail, the petitioner-accused is 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 facts and circumstances of the case, this Court is of the considered view that there are valid grounds for grant of bail subject to conditions. Hence, I pass the following. ORDER The petition filed under Section 439 of Cr.P.C. is allowed. The petitioner-accused No.6 shall be released on bail in Crime No.55/2020 of Hubballi Sub-Urban Police Station, subject to the following conditions. i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) with one surety for the like sum to the satisfaction of the jurisdictional Court. In view of Covid-19 petitioner is permitted to furnish surety within two months. If circumstances arise, jurisdictional court is permitted to extend the time for furnishing surety. ii) The petitioner shall not indulge in hampering the investigation and tampering the prosecution witnesses in any manner. In view of Covid-19 petitioner is permitted to furnish surety within two months. If circumstances arise, jurisdictional court is permitted to extend the time for furnishing surety. ii) The petitioner shall not indulge in hampering the investigation and tampering the prosecution witnesses in any manner. iii) The petitioner shall mark his attendance in Jurisdictional Police Station on every Sunday between 10 a.m. to 6 p.m. for a period of three months or till filing of final report whichever is earlier. iv) The petitioner shall appear regularly before the jurisdictional Court and co-operate in speedy disposal of the case.