Karnataka High Court
Nazeer Ahmed vs The State Of Karnataka on 20 April, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL 2022
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
CRIMINAL PETITION NO.2704/2022
Between:
1. NAZEER AHMED,
S/O. BASHEER AHMED,
AGED ABOUT 29 YEARS,
R/O. 12TH CROSS, SONENAHALLI BASTHI,
NEAR SONENAHALLI BUS STOP,
BENGALURU-560060.
2. SHANAWAZ, S/O SARDHAR,
AGED ABOUT 41 YEARS,
R/O 1/2, 4TH CROSS,
I MAIN ROAD, AZADNAGAR,
NEAR CAMBRIDGE SCHOOL,
BENGALURU-560026.
3. HARISHITH. C, S/O CHINNAGIRI,
AGED ABOUT 30 YEARS,
R/O NO.55/1, JANATA COLONY,
SOMVARPET, KODAGU-571236.
...PETITIONERS
(BY SRI.J.M.ANIL KUMAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY THE
CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH, NO. 36,
BELLARY ROAD, GANGANAGAR,
BENGALURU-560 032.
REPRESENTED BY SPECIAL
PUBLIC PROSECUTOR ...RESPONDENT
(BY SRI P.PRASANNA KUMAR, ADVOCATE)
-2-
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL.C.
NO.565/2021. PENDING BEFORE THE HONBLE LXXXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-82) FOR THE
OFFENCES P/U/S 120B, 143, 147, 148, 302 R/W SECTION 149 OF IPC
AND SECTION 25 READ WITH SECTION 3, 5, 8 , 29 OF ARMS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners, viz., accused Nos.11, 12 and 14 have filed the present petition seeking to be enlarged on bail in connection with their detention relating to the proceedings in Spl.C.No.565/2021 in R.C.No.17(S)/2019 (arising out of Crime No.135/2016 of Sub-Urban Police Station, Dharwad) pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) for the offences punishable under Sections 143, 147, 148, 120-B, 201, 302 r/w Section 149 of IPC and under Section 25 read with Section 3, 5, 8 and 29 of the Arms Act.
2. The narration of facts as made out in Crl.P.No.6906/2021 could be adopted as the aforesaid case relates to the petition seeking to be enlarged on bail relating to a -3- different accused in the same case as that of the petitioners herein.
3. The relevant facts are that the complaint was lodged by one Smt.Mallawwa wife of deceased Yogeshgoudar on 15.06.2016 with Dharwad Sub-Urban Police and pursuant to the same, a case in Crime No.135/2016 was initially registered for an offence punishable under Section 302 of IPC against unknown accused persons and the matter was taken up for investigation.
4. It is stated that the complainant was a resident of Govanakoppa Village and her husband was the President of Taluk Panchayat, Dharwad and later, he was elected as Member of Zilla Panchayat. It is made out from the facts that the deceased husband of the complainant was running a 'Gym' at Sapthapur, Dharwad in the name of "Udaya Gym" and he used to go to 'Gym' everyday at 7.30 a.m., and return home at 9.30 a.m.
5. It is further submitted that the deceased had received an anonymous letter few days earlier to the incident that he would be killed in the manner in which Udayagowda was killed.
-4-
6. It is stated that on 15.06.2016, the deceased left the house at 7.20 a.m., stating that he would go to 'Gym.' At about 8.30 a.m., when the family members were watching Suvarna News Channel, they noticed a news item stating that complainant's husband was murdered at Dharwad and immediately they proceeded to the place of incident. The complainant is stated to have noticed the dead body of her husband with several injuries on the head, neck and chest and was lying in the pool of blood. The Police were requested to take action as per law to bring the offenders to book.
7. It is further submitted that investigation was commenced by Dharwad Sub-Urban Police and that the statements of eyewitnesses were recorded and accused Nos.1 to 6 had been arrested. There was recovery of weapons used for the commission of offence. After completion of investigation, the charge sheet was filed.
8. After committal proceedings, case was registered as S.C.No.50/2017 on the file of IV Addl. District & Sessions Judge, Dharwad. The trial was commenced, the witnesses were examined and 313 statements of the accused were also -5- recorded. It is submitted that when the matter was at the stage of final arguments, a request was made for entrusting the investigation to Central Bureau of Investigation ("CBI" for short).
9. This Court while considering the bail application in Crl.P.No.6906/2021 has also adverted to the statement of objections filed in the said case which could also be taken note of in the present matter for the purpose of complete enumeration of relevant facts. The observations made at para-7 of the order dated 11.01.2022 passed in Crl.P.No.6906/2021, while referring to the statement of objections filed, records that Smt.Thungamma (mother of the deceased) and Sri Gurunatha Goudar (brother of the deceased) had approached this Court seeking to hand over the investigation to CBI in W.P.Nos.58183- 58184/2017. It is submitted that the said Writ Petitions came to be rejected and liberty was reserved to move an application under Section 319 of Cr.P.C.
10. It is however made out that fresh effort was made for entrustment of investigation to the CBI as Sri Gurunatha Goudar had asserted that State Police had not investigated the case properly, as vital evidence was not considered. It was -6- specifically asserted that there was one more car that was involved in the incident and about 60 CC T.V. footages around the place of incident had not been collected.
11. It is further made out that said Sri Gurunath Goudar had specifically asserted that the Police Officers of the rank of Dy.S.P. and a senior politician were involved in the said case and the said Gurunath Goudar had submitted a request to the State Government to transfer the case to CBI categorically mentioning the involvement of Police Officers in the said case.
12. On the basis of the said request, the Government of Karnataka accorded consent under Section 6 of the Delhi Special Police Establishment Act on 06.09.2019 and accordingly, the CBI was permitted to conduct further investigation in Crime No.135/2016 registered by the Dharwad Sub-urban Police Station. On receipt of order of sanction, the respondent-CBI filed a memo before the learned Principal Civil Judge (Jr.Dn.) & JMFC., Dharwad under Section 173 (8) of Cr.P.C., intimating about the respondent-CBI undertaking further investigation in the said case. It is made out that contemporaneously in accordance with the provisions of the CBI Manual, the respondent for -7- administrative and statistical purposes had re-registered FIR No.135/2016 dated 15.06.2016 of Dharwad Sub-urban Police Station as RC 17(S)/2019 dated 24.09.2019. On registration of the case, further investigation came to be commenced by the respondent and it is stated that the respondent has completed the investigation and has filed four supplementary charge sheets.
13. As the applications filed under Section 439 of Cr.P.C. by the present petitioners came to be dismissed by order dated 07.09.2021 passed in Spl.C.No.565/2021 by the Court of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82), the present petition has been filed.
14. It is the contention of learned counsel for the petitioners that the allegations against the present petitioners are contained in charge sheet No.9 dated 15.09.2021 filed under Section 173(8) of Cr.P.C. It is pointed out that the relevant imputations against the petitioners are at paras-9 and 13 of the final report, which read as follows:-
"9. In furtherance of the conspiracy, Shri Basavaraj shivappa Muttagi (A-1) conspired and planned with his associates Shri. Vikram Ballari (A-2), Shri Kirtikumar Kurahatti (A-3), Shri Sandeep Soudatti @ Sandya (A-4), Shri Vinayak Katagi (A-5), Shri -8- Mahabaleshwar Hongal @ Mudaka (A-6) and shri.Vikas Ramesh Kalburgi (A-18) to execute the murder of Shri. Yogesh Goudar. In furtherance of the said conspiracy, shri Basavaraj shivappa Muttagi (A-1) arranged his associates from outside Dharwad to come to Dharwad and execute the murder of shri. Yogesh Goudar and decide to surrender himself along with (A-2 to A-6) before local police. Shri Basavaraj Shivappa Muttagi (A-
1) brought Shri Dinesh (A-8), shri Aswath (A-9), Shri Sunil (A-10), Shri Nazeer Ahamed (A-11), shri Shanawaz (A-12), shri Nuthan (A-13) and Shri Harith C (A-14) who agreed to come to Dharwad and execute the murder of Shri. Yogesh Goudar. The further investigation revealed that in furtherance of the conspiracy (A-8 to A-14) came to Dharwad on two occasions in the month of June 2016 to kill shri. Yogesh Goudar.
13. In furtherance of the conspiracy, 15.06.2016, A-1, A-2, A-3, A-5, and A-18 waited near KCD circle to co-ordinate the plan and they remained in touch through phone calls with A-6 who intimated about the movement of Shri. Yogesh Goudar. They also communicated with A-4 who was driving the Tavera vehicle carrying other accused. The CCTV footage revealed that A-7 to A-14 reached the Uday Gym near Saptapur Post Office at about 06.46 AM onwards and waited for the arrival of Shri.Yogesh Goudar arrived near the Gym spot on 15.06.2016 in a silver coloured Innova at about 07:36 A.M. (A-7 to A-14) attacked him with deadly weapons and killed him on the spot." -9-
15. It is submitted that the petitioners are also entitled to be enlarged on bail on the principle of parity as the other accused, viz., accused nos.7, 8, 10 and 13 have been enlarged on bail and the imputations against the aforementioned accused persons and the present petitioners are substantially identical, if the charge sheet is looked into.
16. It is submitted that accused no.9 has been enlarged on bail vide order dated 11.01.2022 passed in Crl.P.No.6906/2021, accused nos.8, 10 and 13 were enlarged on bail vide order dated 04.03.2022 in Crl.P.No.9742/2021 c/w Crl.P.No.649/2022 and further, accused no.7 was enlarged on bail vide order dated 19.12.2019 passed in Crl.Misc.No.858/2019 by the Court of IV Addl. District and Sessions Judge, Dharwad. It is submitted that in para-9 and 13 of the Final Report, the nature of imputation made against accused nos.7 to 14 are identical and that all accused, i.e. accused nos.7 to 14 are stated to have attacked the deceased with deadly weapons and killed him on the spot. Insofar as the order passed as regards the other accused, viz., accused no.9, against whom similar imputation has been made, this Court by a detailed order dated
- 10 -
11.01.2022 in Crl.P.No.6906/2021 has considered all the contentions.
17. This Court at para-49 in its order dated 11.01.2022 in Crl.P.No.6906/2021 had pointed out that further investigation to C.B.I. was still under challenge before the Apex Court, and subsequently, it is stated that Apex Court has upheld the entrustment of further investigation to C.B.I. However, that by itself would not improve the case of Prosecution insofar as the additional evidence gathered in further investigation, if it is required to be taken note of and if that were to be so, the evidence collected at the first instance, including the recording of statement of witnesses and the charge sheet filed and deposition before the Court at first instance when the charge sheet was filed by Dharwad Sub-Urban Police Station, all of which constitute part of court proceedings may have to be re-appreciated in light of inconsistent stand taken by the same witnesses at a subsequent point of time, i.e. after about four years of the first recording of statement of same witnesses. This appreciation of such material is a matter to be left for trial as pointed out at para-49 of the above said petition.
- 11 -
18. It is also to be noted that the very same witness who in 2016 had made statements regarding imputation as against accused no.6, have turned around in 2019. Whether the evidence let in at first instance before the Court was under
undue influence resulting in tampering of evidence as contended and putforth in the investigation by the C.B.I., is a matter to be demonstrated in trial.
19. It is to be noticed that petitioner no.1 (accused no.11) and petitioner no.2 (accused no.12) are from Bengaluru, while petitioner no.3 (accused no.14) is stated to be from Kodagu District. Insofar as the threat perception of the present petitioners are concerned, it must be noted that the primary allegation of person wielding influence and power was as regards accused no.15 who is stated to have political background and was in a position to tamper the witness and who has been enlarged on bail as per the order of the Apex Court in Criminal Appeal No.807/2021 (arising out of S.L.P. (Criminal) No.4739/2021) dated 11.08.2021. Insofar as the present petitioners are concerned, no such case is made out as they being in a position to prevail over the witnesses and as accused no.15 has already been enlarged on bail, the present petitioners
- 12 -
could also be considered for being enlarged on bail by imposing suitable conditions.
20. It is to be noted that the present petitioners are in custody since 28.02.2020. Admittedly, the investigation is complete and four charge sheets have been filed by the respondent - C.B.I. The allegations made out by C.B.I. and assertion of C.B.I. while placing reliance on the contents of Final Report filed, if accepted, would point out to the role of Investigating Agencies at the first instance (as regards investigation on the complaint made to Dharwad Sub-Urban Police Station) having colluded with the accused persons and derailing the investigation. As observed while passing the order dated 11.01.2022 in Crl.P.No.6906/2021, though allegations are serious in nature and that by itself would not justify the continuance of petitioners in the custody.
21. This Court in Crl.P.No.6906/2021 has also observed that the gravity of offence by itself cannot be a sole factor while considering the plea for enlargement on bail. The gravity of imputation regarding the commission of offence is to be taken note of along with the other factors as well.
- 13 -
22. This Court while disposing of Crl.P.No.251/2021 and connected matters on 22.06.2021 has considered the relevant factors to be taken note of while granting bail after referring to the various judgments of Apex Court. No doubt, the gravity of offence may be a pre-eminent consideration, but it cannot be to the exclusion of other considerations. This principle could be deduced from a reading at para-43 of the judgment of Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40 that grant of bail is an exercise whereby the balance must be struck between the public interest to ensure that the accused persons are brought to book while also ensuring that liberty of an individual is protected. It is settled position that the proceedings relating to grant of bail are not to be treated as being punitive. The substantiation of material filed in support of charge sheet are matters to be tested during trial.
23. In the case of Arnab Manoranjan Goswami v. State of Maharashtra and Others reported in (2021) 2 SCC 427, the Apex Court has considered the scope of power while granting bail and has laid down the following guidelines in para-64 of its judgment, which reads as follows:
- 14 -
"64. While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarised as follows:
64.1. The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction.
64.2. Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses.
64.3. The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice.
64.4. The antecedents of and circumstances which are peculiar to the accused.
64.5. Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR.
64.6. The significant interests of the public or the State and other similar considerations."
24. While considering the peculiar facts of the present case, what needs to be kept in mind is that the trial at first instance had reached an advanced stage, i.e. statement of
- 15 -
witnesses had been recorded, charge sheets had been filed and the witnesses were examined in the Court. The reason that the witnesses turned hostile and are not supporting the case of Prosecution as made out during the charge sheet filed at the first instance by Dharwad Sub-Urban Police and the witnesses having turned around and are placing a different version, is a matter that needs to be re-visited during trial on the basis of fresh investigation report placed by C.B.I., including the statement recorded under Section 161 of Cr.P.C. of the witnesses which purportedly points out to the involvement of petitioners in the alleged offences.
25. What cannot be lost sight of is the statement of witnesses under Section 161 of Cr.P.C. recorded at the first instance in the year 2016, while statement of witnesses recorded after C.B.I. had taken over the investigation in the year 2019, which statements of same witnesses, are at divergence from the stand taken by the witnesses in the year 2016, all of which require to be reconciled.
26. It must be also to be noted that the imputation made against the present petitioners, including accused nos.7 to 14, is
- 16 -
by reliance on the C.C. T.V. footages stated to have been recovered during fresh investigation by C.B.I. Even if C.C. T.V. footage is taken note of, it must be noted that the same being an electronic evidence that has been salvaged after many years must be tested during trial.
27. This Court has also considered various judgments relied on by respondent - C.B.I. in paras-68 to 71 of the order dated 11.01.2022 passed in Crl.P.No.6906/2021, which may be taken note of.
28. Accordingly, in light of the discussion made above, noting that the present proceedings are not punitive in nature and that the investigation is complete and four charge sheets have been filed and all evidence have been gathered, the petitioners are entitled to be enlarged on bail by imposing necessary conditions.
29. Apart from merits of the case, it is also on the principle of parity insofar as the imputations made against the group of accused, i.e. accused nos.7 to 14 that are similar in nature.
- 17 -
30. A perusal of paras-9 and 13 of charge sheet no.9 as extracted in para-14 of the order, the imputation made against accused nos.7 to 14 is that all of them arrived at 'Udaya Gym' at 6.46 a.m. and waited for the arrival of deceased and when he came out, attacked him with deadly weapons and killed him. Thus, the imputations as regards the group of accused nos.7 to 14 are identical. It is further to be noted that the factual narration as made in para-16 would reveal that the accused in the group of accused nos.7 to 14 apart from the petitioners herein have been enlarged on bail. Hence, the petitioners herein are also entitled to be enlarged on bail on the principle of parity.
In light of the above discussion, case is made out for enlarging the present petitioners on bail, subject to conditions.
31. In the result, the bail petition filed by the petitioners (accused Nos.11, 12 and 14) under Section 439 of Cr.P.C. is allowed and the petitioners (accused nos.11, 12 and 14) are enlarged on bail in Spl.C.No.565/2021 in Crime No.17(S)/2019- CBI-BLR (arising out of Crime No.135/2016 of Sub-urban Police Station, Dharwad) pending on the file of LXXXI Addl. City Civil
- 18 -
and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) for the offences punishable under Sections 143, 147, 148, 120(B), 201,302 r/w Section 149 of IPC, subject to the following conditions:-
i. The petitioners shall execute personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) each with two sureties for the likesum before the concerned court. ii. The petitioners shall not in any way impede the conduct and proceedings of the investigation and the trial.
iii. The petitioners shall not directly or indirectly get in touch with any of the witnesses nor shall they try to influence any such witnesses.
iv. The petitioners shall not visit the City of Dharwad till trial is completed.
- 19 -
v. The petitioner nos.1 and 2 (accused nos.11 and 12) shall mark their presence in the Office of ACP CBI, Unit, Bengaluru once in a week on every Sunday between 10.00 a.m. and 2.00 p.m. The petitioner no.3 (accused no.14) shall mark his presence in the Office of ACP, CBI, Unit, Bengaluru once in a fortnight between 10.00 a.m. and 2.00 p.m. vi. Any infraction or violation of the above conditions shall entail cancellation of bail.
Sd/-
JUDGE VGR