Karnataka High Court
Shri Mahantesh S/O. Appaya Badaraddi vs The State Of Karnataka on 30 June, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO.101346 OF 2022
BETWEEN:
SHRI. MAHANTESH,
S/O. APPAYA BADARADDI,
AGE:42, OCC: GOVT. SERVANT,
R/O. HINDALAGA VILLAGE,
BELAGAVI. ... PETITIONER
[BY SRI. SANDESH J. CHOUTA, SENIOR ADVOCATE FOR
SRI. JAGADISH PATIL, ADVOCATE]
AND:
1. THE STATE OF KARNATAKA
THROUGH GOKAK TOWN POLICE STATION,
REPRESENTED BY IT'S STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BENCH,
AT: DHARWAD.
2. SHRI. DEEPAK,
S/O. SHRIKANT INGALAGI,
AGE:23 YEARS, OCC: COOLIE,
R/O. ADIJAMBAVA NAGAR, GOKAK. ... RESPONDENTS
[BY SRI. PRAVEEN UPPAR, HCGP., FOR R1.
SRI. AVINASH M. ANGADI, ADVOCATE FOR R2]
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ALLOW THE PETITION AND ENLARGE
PETITIONER/ACCUSED NO.21 ON BAIL IN CONNNECTION WITH
GOKAK TOWN POLICE STATION, FIR CRIME NO.72/2020 DATED
06.05.2020 FOR OFFENCES PUNISHABLE UNDER SECTIONS 109,
115, 166 AND 217 OF IPC., AND SECTION 3(2) AND 25 OF THE
KCOC ACT, 2000, WITH RESPECT TO THE PETITIONER.
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THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE AT PRINCIPAL BENCH,
BENGALURU, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is arraigned as accused No.21 in the additional charge-sheet filed in connection with a case registered in Crime No.72/2020 of Gokak Town Police Station has preferred this petition under Section 439 of Cr.P.C., praying to enlarge him on bail.
2. The petitioner had preferred a petition under Section 439 of Cr.P.C., before the learned Principal Sessions Judge [KCOCA Spl. Judge], Belagavi, in Special Case No.202/2020 and the said petition was rejected vide Order dated 12.07.2021.
3. I have heard the learned senior counsel appearing for petitioner, the learned High Court Government Pleader for respondent/State and the learned counsel for respondent No.2.
The learned High Court Government Pleader has filed statement of objections.
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4. Brief facts of the case are that, deceased Siddappa Arjun Kanamaddi was the State President of Youth Wing of Dalit Sangarsha Samiti. The accused persons are from Marata community. Earlier, a case was registered against the accused persons in connection with murder of one Rohit Patil. In view of previous enmity, on 06.05.2020 at about 8.00 p.m., accused Nos.1 and 2, who came on a motorcycle and other accused in a rickshaw, confronted the deceased in connection with the previous incident. They formed an unlawful assembly, abused the deceased by referring to his caste and assaulted him with swords, machetes and also gave life threat to the complainant Deepak and 3 others viz., Kiran, Raju and Prashant, who tried to rescue him. The victim was shifted to hospital and while undergoing treatment, he succumbed to the injuries on 07.05.2020 at about 4.00 p.m.
5. On a complaint lodged by respondent No.2- Deepak Ingalagi, case was registered naming accused Nos.1 to 3 and 4 to 5 others for offence punishable under Sections 143, 147, 148, 307, 504, 506 r/w. 149 of IPC and 4 Sections 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as 'SC and ST (POA) Act' for short] in Crime No.72/2020 of Gokak Town Police Station. On completion of investigation, charge-sheet was filed for offences punishable under Sections 143, 144, 147, 148, 150, 341, 302, 120-B, 212, 201, 109, 115, 166, 217, 504, 506 r/w 34, 35, 37 and 149 of IPC, Sections 3(1)(r), 3(1)(s), 3(2)(v), 3(2)(v,a), and 8(1)A of the SC and ST [POA] Act, Section 25(1)A of the Arms Act, 1959, Sections 25(1)B, VI(6), (7) of the Arms [Amendment] Act, 2019 and Sections 3(1)(i), 3(2), 3(3), 3(4), 3(5), 4 and 25 of the Karnataka Control of Organised Crimes Act, 2000 [hereinafter referred to as 'KCOC Act' for short].
6. The petitioner has been arraigned as accused No.21 in the additional charge-sheet filed by the Police invoking Sections 109, 115, 166 and 217 of IPC and Sections 3(2) and 25 of the KCOC Act.
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7. It is alleged that the petitioner was working as a Jail Warder at Hindalga Central Prison, Belagavi and knowing very well that the accused have committed a heinous offence and they are members of an organized crime syndicate and members of a 'Tiger Gang', provided a black colour Samsung android mobile phone with SIM No.7259940446 to accused Nos.1 and 2, who were lodged in the prison, to help them to destroy evidence and to collect amount from their associates for the purpose of their bail.
8. It is contended by the learned senior counsel appearing for the petitioner that, even according to the prosecution, petitioner is not a member of the unlawful assembly who committed the murder and he is not a member of any organized crime syndicate and therefore, invocation of KCOC Act against the petitioner is without any basis. He has contended that the only allegation against the petitioner is that after commission of the offence, when accused Nos.1 and 2 were lodged in the Hindalga Central Prison, Belagavi, the petitioner tried to help them by 6 providing a Samsung android mobile phone. He contends that the said mobile phone is alleged to have collected by the petitioner from his nephew viz, Vinayaka Talawar, even prior to the arrest of accused and therefore, no knowledge or criminal intention can be attributed against the petitioner. Further contended that Sections 109 and 115 of IPC and Section 3(2) of the KCOC Act are not at all attracted and Sections 156 and 217 of IPC are bailable offence. He further submits that in so far as Section 25 of the KCOC Act is concerned, the said offence is punishable for a maximum imprisonment of 3 years with fine. He contends that there is no confessional statement of the petitioner recorded under Section 19 of the Act and his voluntary statement is not admissible in evidence. He submits, now investigation is completed and charge-sheet has been filed and hence, the petitioner is not required for any further investigation and therefore, the petitioner may be enlarged on bail by imposing condition/s.
9. The learned High Court Government Pleader has contended that accused Nos.1 to 20 against whom the 7 charge-sheet has been filed are the members of a 'Tiger Gang' and they are notorious persons involved in number of cases and hence, after taking necessary permission, the provisions of the KCOC Act has been invoked against them. He submits, knowing very well that accused Nos.1 and 2 belong to the said gang, the petitioner who is a responsible officer, working as a Jail Warder at Hindalga Central Prison, Belagavi, has provided a mobile phone with SIM No.7259940446 to help them to destroy the evidence and also to contact their other associates from the prison and therefore, contended that the offence committed by the petitioner is heinous in nature and therefore, he is not entitled for the relief sought in this petition.
10. I have perused the entire materials on record.
11. The allegations against the petitioner is that he was a Jail Warder at Central Prison, Hindalga, Belagavi, and after the arrest of accused Nos.1 and 2 and their remand to the judicial custody, at their request, provided a black colour android mobile phone of Samsung Company with SIM No.7259940446 having IMEI No.357348101734780 8 and 357349101734788, to help them to destroy the evidence and also to contact their associates to arrange money for obtaining bail. According to the prosecution, the said SIM card was obtained by the petitioner through his nephew by name Vinayak Talwar [C.W.206] from the shop of one Zakir Hussain of Gokak Falls.
12. Accused No.2 was arrested on 12.05.2020 and accused No.1 was arrested on 13.05.2020. Admittedly, according to the prosecution, the said SIM card was received by the petitioner on 11.05.2020 i.e, prior to the arrest of the said accused. It is not the case of prosecution that after the said accused were arrested and remanded in judicial custody, the petitioner obtained the SIM card at the request of the said accused so as to help them.
13. The prosecution is relying on the voluntary statement of the petitioner recorded on 18.12.2020. It is contended by the learned senior counsel that the said voluntary statement is not admissible in evidence and the confessional statement of the petitioner is not recorded as required under law. Attention of the Court was drawn to 9 Section 19(1) of the KCOC Act to contend that a confession statement has to be recorded by a Police Officer not below the rank of Superintendent of Police and in the present case, no such statement is recorded by such an Officer but, a voluntary statement was recorded by the Deputy Superintendent of Police. Admittedly, there is no confession Statement of the petitioner recorded under Section 19(1) of the KCOC Act.
14. The learned senior counsel has also drawn the attention of the Court to Section 3(2) of the KCOC Act to contend that the said provision would attract only when the accused attempts to commit or advocates, abets or knowingly facilitates the commission of an organized crime or any act preparatory to organized crime. He contended that even according to the prosecution it is only after other accused have committed the murder, the petitioner is alleged to have provided a mobile phone to accused Nos.1 and 2, when they were in the prison. He has contended that even accepting the case of the prosecution, then only 10 Section 25 of the KCOC Act would attract and not Section 3(2) of the Act.
15. According to Section 25 of the KCOC Act, whoever being a public servant renders any help or support in any manner in the commission of organized crime as defined in clause (e) of Section 2, whether before or after the commission of any offence by a member of an organized crime syndicate or abstains from taking lawful measures under the Act or intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect shall be punished with imprisonment of either description for a term which may extend to three years and also with fine.
16. In the above Section, it is specifically mentioned that 'any help or support in any manner in the commission of organised crime whether before or after the commission of any offence by a member of an organized crime syndicate etc.' would attract the said offence. In so far as Section 3(2) of the KCOC Act is concerned, the word 'after the commission of offence' is not found.
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17. In the case of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and another reported in 2005 AIR SCW 2215, relied on by the learned senior counsel, at paragraph 30, the Hon'ble Apex Court has held as under:
"30. The interpretation clause as regard the expression 'abet' does not refer to the definition of abetment as contained in Section 107 of IPC. It refers to such meaning which can be attributed to it in the general sense with grammatical variations and cognate expressions. However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under Sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, "communication" or "association" must be read to mean such communication or association which is in aid of or render assistance in the commission of organized crime. In our considered opinion, any communication or association which has no nexus with the commission of organized crime would not come within the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes (a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate. Communication to, or association with, any person by itself, as was 12 contended by Mr. Sharan, would not, in our considered opinion, come within meaning of the aforementioned provision. The communication or association must relate to a person. Such communication or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organised crime syndicate. Thus, the offence under Section 3(2) of MCOCA must have a direct nexus with the offence committed by an organised crime syndicate. Such abetment of commission of offence must be by way of accessories before the commission of an offence. An offence may be committed by a public servant by reason of acts of omission and commission which would amount to tampering with the investigation or to help an accused. Such an act would make him an accessory after the commission of the offence. It is interesting to note that whereas Section 3(2) having regard to the definition of the term 'abet' refers directly to commission of an offence or assisting in any manner an organised crime syndicate, Section 24 postulates a situation where a public servant renders any help or support both before or after the commission of an offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act."
18. In the instant case, it is not alleged by the prosecution that the petitioner was involved in commission of the murder or that prior to commission of the murder, 13 he had helped the accused in any manner. The allegations are that after accused Nos.1 and 2 were lodged in the prison, he provided a mobile phone to them with SIM No.7259940446. The allegations have to be proved in a full-fledged trial. The said mobile phone has been seized from the possession of accused Nos.1 and 2.
19. The learned High Court Government Pleader has contended that Section 22(4) of the KCOC Act restricts grant of bail to an accused unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
20. The Hon'ble Apex Court in Ranjitsing Brahmajeetsing Sharma's case, (supra) while considering a similar case under the Maharashtra Control of Organised Crime Act, has held as under:
"47. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery 14 available to the Court to ascertain that once the accused enlarged on bail, he would not commit any offence whatsoever?"
48. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on records only for grant of bail and for no other purpose.
49. We are furthermore of the opinion that the restrictions on the power of Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction, may not 15 lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision."
21. The petitioner is arrested on 17.12.2020. He is in judicial custody for over 1½ years. He has undertaken to abide by conditions and to regularly appear before the trial court. The further detention of the petitioner may not be necessary in the facts and circumstances of the case and for the reasons stated supra. The petitioner has made out sufficient grounds to enlarge him on bail. Hence, by imposing appropriate conditions, he can be admitted to bail. Accordingly, the following:
ORDER Petition is allowed.
Petitioner/accused No.21 in Crime No.72/2020 of Gokak Town Police Station, pending on the file of the 16 learned Principal Sessions Judge [KCOCA Spl. Judge], Belagavi, in Special Case No.202/2020, shall be released on bail subject to following conditions:
(1) He shall execute a personal bond in a sum of `2,00,000/- [Rupees Two Lakhs only] with two likesum sureties to the satisfaction of the jurisdictional Court.
(2) He shall furnish proof of his residential address and shall inform the Court, if there is change in the address.
(3) He shall not tamper with the prosecution witnesses/evidence either directly or indirectly.
(4) He shall not leave the jurisdiction of the trial Court without prior permission of the learned Sessions Judge.
(5) He shall not involve in any criminal activities.
(6) He shall appear before the trial Court on all dates of hearing unless exempted for any genuine reason.17
The observations made in this order are confined to the disposal of this petition and shall not influence the trial of the case in any manner.
Sd/-
JUDGE Ksm*