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2023 DIGILAW 403 (KAR)

Nizam @ Mohammed Nizam v. State of Karnataka

2023-03-09

V SRISHANANDA

body2023
JUDGMENT/ORDER V Srishananda, J. - Heard Sri.Harish T. Bandary, learned counsel for the petitioner and Sri.Vinayaka S., learned HCGP for respondent-State. 2. This petition under Section 439 Cr.P.C. with the following prayer: 'WHEREFORE, it is respectfully prayed that this Hon'ble Court may kindly be pleased to enlarge him on bail in Crime No.122/2022 of Uppinangady Police Station, registered for the offence punishable under sections 447, 504, 323, 324, 307, 506, 143, 147, 148 read with section 149 of IPC by the Court of V Addl. District and Sessions Judge, Puttur, D.K in the interest of justice.' 3. The brief facts of the case are as under: A complaint came to be lodged by Smt. Tahira, wife of Usman Beary on 26.11.2022 to Uppinangady Police, which was registered in Crime No.122/2022 for the offence punishable under Sections 447, 504, 323, 324, 307, 506, 143, 147, 148 read with Section 149 of IPC. 4. The gist of the complaint reveals that on 25.11.2022 at about 11.15 p.m., petitioner and others barged into the house of the complainant and banged the front door. Being surprised as to who is banging the front door, the injured being the husband of the complainant opened the front door. At that juncture, petitioner and others who had assembled their abused the injured in filthy language. At that juncture, the brother-in-law of the complainant was called by the complainant and when he arrived, the accused persons assaulted him with hands. When the husband of complainant tried to rescue the complainant and his brother, petitioner and others assaulted the husband of the complainant and in the said altercation, the petitioner assaulted the husband of the complainant with a knife on the chest. He has also assaulted the injured with stick and stones. The incident has occurred on account of the complainant having failed to give her daughter in marriage to the petitioner herein. 5. Later on, the petitioner and others gave life threat and ran away on the two wheelers on which they had arrived to the spot. Thereafter, the injured was shifted to hospital and the complaint was lodged. 6. The police are investigating the matter and in the course of investigation, petitioner and others are arrested. Petitioner and others approached the District Court for grant of bail in Crl.Misc.No.5255/2022. Thereafter, the injured was shifted to hospital and the complaint was lodged. 6. The police are investigating the matter and in the course of investigation, petitioner and others are arrested. Petitioner and others approached the District Court for grant of bail in Crl.Misc.No.5255/2022. The learned District Judge granted bail for two of the accused persons and denied bail to the present petitioner noting specific overt-acts alleged against the petitioner herein by his order dated 19.12.2022. 7. Thereafter, the petitioner is before this Court. 8. Sri. Harish T. Bhandary, learned counsel for the petitioner reiterating the grounds urged in the petition vehemently contended that the learned trial Judge has failed to note that when he was enlarging the other accused persons on bail, the present petitioner was also entitled to be enlarged on bail having regard to the fact that the prosecution had invoked Section 149 of IPC and in such circumstances, it was impermissible for the learned District Judge to consider the individual overt-acts of the present petitioner and deny the bail to him. 9. Per contra, the learned HCGP opposes the bail grounds by contending that the photographs of the injured would clearly depict the individual overt-acts attributable to the petitioner herein and there is a cut injury on the chest and the weapon that has been used to cause the said injury has been recovered at the instance of the petitioner, which would prima-facie establish the nexus between the petitioner and the incident and having regard to the nature of the offence, petitioner is not entitled for grant of bail. 10. In view of the rival contentions of the parties, perused the materials on record meticulously. 11. In the case on hand, the motive for the incident is that the complainant failed to give her daughter in marriage with the petitioner herein. Being enraged by the said refusal, the petitioner who is accused No.1 had come to assault with deadly weapons along with other accused persons on 25.11.2022 at about 11.15 p.m. and banged the front door of the house of the complainant. 12. The husband of the complainant went and opened the door. At that juncture, all of a sudden, petitioner and others assaulted husband of complainant resulting in grievous injuries sustained by the husband of the complainant. 13. The matter is thoroughly investigated and a charge sheet came to be filed against the petitioner herein. 12. The husband of the complainant went and opened the door. At that juncture, all of a sudden, petitioner and others assaulted husband of complainant resulting in grievous injuries sustained by the husband of the complainant. 13. The matter is thoroughly investigated and a charge sheet came to be filed against the petitioner herein. The photographs produced by the prosecution along with a memo while opposing the bail application depict the severity of the incident. The prima-facie material available on record at this stage without holding mini enquiry would reveal that the gravity of offence is so high and for a flimsy reason the incident has occurred resulting in a severe injury to the husband of the complainant. 14. What was the intention of the petitioner in causing such an assault to the husband of the complainant and whether it amounts to an attempt to murder or not are the matters that are to be adjudicated by the trial Court after full fledged trial. Suffice to say, all the materials on record would definitely disentitle the petitioner from obtaining the order of bail by resorting to the special power vested with this Court under Section 439 of Cr.P.C. The apprehension expressed by the prosecution are also well founded. 16. Accordingly, the following: ORDER The criminal petition is rejected.