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2023 DIGILAW 647 (KAR)

Mohamad Esmaial v. State of Karnataka

2023-04-21

V.SRISHANANDA

body2023
JUDGMENT/ORDER 1. Learned High Court Government Pleader files statement of objections and the same is taken on record. 2. Heard Sri.Hasmath Pasha, learned Senior Counsel appearing for the petitioners and Sri.Vinayaka V.S., learned High Court Government Pleader appearing for the respondent-State. 3. These three petitions are filed under Ss. 439 of Cr.P.C with the following prayer. In Crl.P.No.2686/2023: "WHEREFORE, the petitioner (A-12) most humbly prays that this Hon'ble Court may be pleased to enlarge him on bail in Crime No.73/2022 of Tiptur Rural Police Station, Tiptur, Tumkur District, for offences under Ss. 143, 147, 148, 120-B, 302, 307, 324, 447, 448, 449 read with Sec. 149 of IPC, which is pending in C.C.No.51/2013 on the file of the Hon'ble Principal Civil Judge and JMFC, Tiptur, on such terms and conditions, in the interest of justice and equity." In Crl.P.No.2687/2023 "WHEREFORE, the petitioner (A-10) most humbly prays that this Hon'ble Court may be pleased to enlarge him on bail in Crime No.73/2022 of Tiptur Rural Police Station, Tiptur, Tumkur District, for offences under Ss. 143, 147, 148, 120-B, 302, 307, 324, 447, 448, 449 read with Sec. 149 of IPC, which is pending in C.C.No.51/2013 on the file of the Hon'ble Principal Civil Judge and JMFC, Tiptur, on such terms and conditions, in the interest of justice and equity." In Crl.P.No.2688/2023 "WHEREFORE, the petitioner (A-8) most humbly prays that this Hon'ble Court may be pleased to enlarge him on bail in Crime No.73/2022 of Tiptur Rural Police Station, Tiptur, Tumkur District, for offences under Ss. 143, 147, 148, 120-B, 302, 307, 324, 447, 448, 449 read with Sec. 149 of IPC, which is pending in C.C.No.51/2013 on the file of the Hon'ble Principal Civil Judge and JMFC, Tiptur, on such terms and conditions, in the interest of justice and equity." 4. The petitioners are Accused Nos.8 to 10 and 12 in Crime No.73/2022 of Tiptur Rural Police Station. 5. The brief facts of the case are as under ; Sri. Basavaraju H.V. S/o Late Virupakshappa lodged a complaint with the Tiptur Rural Police on 25/10/2022, which was registered in Crime No.73/2022 for the offence punishable under Ss. 302, 307, 324, 447, 448, 143, 147, 148, 149 of IPC. 6. 5. The brief facts of the case are as under ; Sri. Basavaraju H.V. S/o Late Virupakshappa lodged a complaint with the Tiptur Rural Police on 25/10/2022, which was registered in Crime No.73/2022 for the offence punishable under Ss. 302, 307, 324, 447, 448, 143, 147, 148, 149 of IPC. 6. The gist of the complaint averments reveal that; On 25/10/2022, Sri.Diwakar (deeased)had arranged a birthday party in a shed in garden land on 24/10/2022 at about 4.00 p.m., The arrangements for the birthday party were made and Sri.Diwakar and his friends proceeded to the said spot. He had invited limited number of his friends and they attended the birthday party. At that juncture, accused Nos.1 to 32 gained entry inside the party area and picked up quarrel with Diwakar and assaulted him. C.W.3 saw the incident and wanted to report the same to the friends and public and rushed out of the party area as soon as Ravish came out, these petitioners thought that untoward incident has occurred inside and they were rushing towards the party area. At that juncture, accused No.6 assaulted Ravish. 7. The petitioners went inside and saw that Diwakar was no more and after seeing the incident the present petitioners ran away from the spot. 8. The incident was reported to the police by Basavaraju and police registered the case and investigated the matter, inter alia arrested these petitioners. After thorough investigation, charge sheet came to be filed. 8. Even according to the charge sheet material the role assigned to the present petitioners is that they were keeping a watch outside in order to prevent somebody else obstructing the accomplishment of murder of Diwakara by accused Nos.1 to 3. 9. The attempt made by the petitioners to obtain an order of grant of bail is turned by the learned District Judge at Tumkur sitting at Tiptur. Thereafter, petitioners are before this Court. 10. Sri.Hashmath Pasha, learned Senior Counsel vehemently contended that charge sheet materials even if it is accepted as true for the sake of argument, the role that is assigned to the present petitioners is only to the extent of keeping a watch. No witnesses have stated that these petitioners also shared the common object of taking away the life of Diwakar and therefore, continuation of the present petitioners in the judicial custody is no longer warranted. No witnesses have stated that these petitioners also shared the common object of taking away the life of Diwakar and therefore, continuation of the present petitioners in the judicial custody is no longer warranted. He also contended that the material evidence on record would only go to show that after the incident these petitioners ran away from the spot and therefore, in the absence of any active participation of these petitioners no overt tact could be attributed to the present petitioners by resorting to the provision vested with this court under Sec. 439 Cr.PC. and sought for grant of bail. 10. At the most, the material on record would only establish the presence of the petitioners at the spot at the relevant time of incident which would not disentitle the present petitioners to obtain an order of grant of bail by resorting to the special powers vested with this Court under Sec. 439 of Cr.P.C. and sought for allowing the petition. 11. Per contra, learned High Court Government Pleader opposes the bail grounds by reiterating the grounds urged in the objection statement. 12. He also contended that when the prosecution has invoked Sec. 149 IPC, individual overt act would loose its significance. In such an event, the act of one of the accused would also bind on the other accused persons and therefore, sought for rejection of the bail petition. 13. In view of the rival contention of the parties, this Court perused the material on record meticulously. On such perusal of the material on record, it is seen that the present petitioners were roped in the incident and the role assigned to the present petitioners is that to keep a watch to prevent the possible obstruction that may be committed by accused Nos.1 to 3. Whether at all these petitioners shared the common object of murdering the Diwakar and also assaulting Ravish (CW.3 or not) cannot be decided by this Court at this stage by holding a mini trial. 14. Suffice to say that the accused petitioners are in custody and charge sheet is also filed. Taking note of the rule assigned to the present petitioners, this Court is of the considered opinion that the continuation of the accused/petitioners in juridical custody is no longer warranted. The apprehensions of the prosecution can be including the ground of parity, can be met with by imposing suitable and stringent conditions. Taking note of the rule assigned to the present petitioners, this Court is of the considered opinion that the continuation of the accused/petitioners in juridical custody is no longer warranted. The apprehensions of the prosecution can be including the ground of parity, can be met with by imposing suitable and stringent conditions. Accordingly, following: ORDER i. The criminal petition is allowed. ii. Petitioners/accused Nos.8, 10, 12 are directed to be enlarged on bail by taking a bond in a sum of Rs.2, 00, 000.00 (Rupees Two lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court. iii. Petitioners/accused Nos.8, 10, 12 shall not tamper the prosecution witnesses. iv. Petitioners/accused Nos.8, 10, 12 shall attend the Court regularly. v. Petitioners/accused Nos.8, 10, 12 shall not leave the jurisdiction of the Tumkuru District, without prior permission. vi. Grant of bail to the present Petitioners/accused Nos.8, 10, 12 would not ipso facto act as parity insofar as the other accused persons to obtain bail. Violation of any one of the conditions would entitle prosecution to seek for cancellation of bail. Ordered accordingly.