Karnataka High Court
Shivaling Gangappa Mahar @ Kamble vs State Of Karnataka on 5 January, 2021
Author: K.Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.101309/2020
BETWEEN:
SHIVALING GANGAPPA MAHAR @ KAMBLE,
AGE : 37 YEARS, OCC : COOLIE,
R/O.ASANGI VILLAGE, BASAVANNA NAGAR,
TQ : JAMAKHANDI, DIST : BAGALKOT.
...PETITIONER
(BY SRI NEELENDRA D.GUNDE, ADVOCATE)
AND :
THE STATE OF KARNATAKA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
....RESPONDENT
(BY SMT SEEMA SHIVA NAIK, HCGP)
THIS PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. AND PRAYED TO GRANT BAIL TO
PETITIONER/ACCUSED NO.4 IN THE PROCEEDING PENDING
BEFORE THE VII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BELAGAVI SITTING AT CHIKKODI IN
S.C.NO.246/2016 IN CRIME NO.69/2016 BEING TRIED FOR
OFFENCES PUNISHABLE UNDER SECTION 395 READ WITH
SECTION 120B OF IPC OF KUDACHI P.S., IN THE INTEREST
OF JUSTICE AND EQUITY.
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THIS PETITION COMING ON FOR ORDERS THROUGH
PHYSICAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner/accused No.4 filed this successive bail petition under Section 439 of Cr.P.C. for granting regular bail in Sessions Case No.246/2016 registered by Kudachi Police Station in Crime No.69/2016 for the offences punishable under Sections 395 and 120(B) of Indian Penal Code (for short the 'IPC').
2. The case of the petitioner is that, the Kudachi Police registered a case against him and other six accused persons for the above said offences on the complaint filed by one Mohammed Iliyas Babusaheb Rajannavar with the respondent-police alleging that on 25.03.2016, accused No.1-Rajasab was the driver of Truck bearing registration No.KA-48/4414 loading turmeric roots had gone to Sangli to sell. The complainant after selling the same was returning in the said lorry with cash of Rs.19,50,000/- and on the way three persons were boarded the said lorry and they have threatened the complainant and snatched the cash of Rs.19,50,000/- by throwing the chilly powder on 3 the eyes of the complainant and fled away from the Truck. The complaint came to be lodged against the unknown persons. During the investigation, it was revealed that the accused No.1 who is the driver of lorry himself conspired with the other accused persons with an intention to grab money from the complainant got boarded the accused persons into the lorry. Subsequently, police arrested the total seven persons, one person said to be juvenile offender. From these persons police have recovered amount about Rs.19,20,0000/- under the panchanama in the presence of panchas and filed the charge sheet. The petitioner/accused No.4 approached the Sessions Court for bail, which came to be rejected. The present accused has moved a bail petition before this Court in Criminal Petition No.101568/2017 for grant of bail which came to be rejected on 07.08.2017. Subsequently, again the petitioner/accused No.4 moved a bail petition before the Sessions Court which came to be rejected on 24.08.2020, hence the petitioner is before this Court. 4
3. Learned counsel appearing for the petitioner contended that though the earlier petitions came to be rejected above three years back and subsequently the trial has began, there were four witnesses examined, but the complainant not appeared for evidence and warrant has been issued by the trial Court against the complainant and due to Covid-19 pandemic trials are not going in the trial Courts. The Co-accused No.2 is having more allegations and direct evidence, who has granted bail by co-rdinate bench of this Court in Criminal Petition No.10234/2020 on 07.12.2020, therefore on the ground of parity this petitioner is also entitled for bail and he is ready to abide by any conditions to be imposed by this Court. Hence, he prayed for grant of bail to the petitioner/accused No.4.
4. Per contra, learned HCGP Ms.Seema Shiva Naik objects the bail petition on the ground that earlier bail petition filed by this petitioner came to be rejected by this Court. There is no new ground adduced by the petitioner to grant successive bail petition. There were four witnesses examined by trial Court. Hence, she prayed for rejection of the bail petition.
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5. Upon hearing the arguments and on perusal of the records, it shows that, the complainant went to Sangli along with accused No.1 in the lorry for selling the turmeric and after selling the same he had received cash of Rs.19,50,000/-, while returning on the same lorry, accused No.1 permitted other three persons to board on the lorry though objected by the complainant. After boarding the said persons, they have thrown the chilly powder in the eyes of complainant and robbed the money and took away the cash from the truck. After that, came to know that accused No.1 himself conspired with the other accused persons for robbing the money from the complainant and during the investigation the police arrested all seven persons and recovered the cash about Rs.19,20,000/-.
6. The bail petition filed by this petitioner came to be rejected on 07.08.2017. Except filing the charge sheet there is no trial commenced before the Sessions Court and now the trial has been began after committal of the case by the Magistrate. It is not in dispute that there were four 6 witnesses examined by the prosecution and complainant who is to be examined and he was not appearing before the Court and warrant has been issued by the trial Court. Due to Covid-19 for almost 10 months the trials are not proceeding properly and coordinate bench of this Court in Criminal Petition No.100234/2020 having granted bail to the accused No.2 -Abdul Razak Sikandar Mulla on 07.12.2020. The allegations against the accused No.2 is that who also boarded the lorry and snatched the money from the complainant. The only allegation against this petitioner is that he has followed the lorry on his motorcycle and purchased the chilly powder before committing the offences. However, the amount of Rs.40,000/- has been recovered from the possession of the accused which also not in dispute. The Court is already granted bail to the accused No.2, he is having much allegations against him rather than this petitioner/accused No.4. Therefore, this petitioner is also entitled for bail on the ground of parity. The only apprehension of the prosecution is that he may commit similar offences, if he granted bail. I am of the view that, by imposing stringent 7 conditions, the petitioner be enlarged on bail no prejudice would be caused to the prosecution. That apart the trial Court due to Covid-19 pandemic situation and the petitioner said to be is in judicial custody for more than four years and ten months. The punishment prescribed under the provisions of Section 395 of IPC is 10 years, he has already undergone half of the sentence. Therefore, considering the facts and circumstances of the case, I am of the opinion that petitioner has made out additional ground for considering the successive bail petition. Accordingly, I pass the following:
ORDER The trial Court is directed to release the petitioner/accused No.4-Shivaling on bail in S.C.No.246/2016 pending on the file of VII Additional District and Sessions Judge, Belagavi sitting at Chikkodi (Crime No.69/2016), subject to the following conditions :
(i) Petitioner/accused No.4 shall execute a personal bond for a sum of Rs.1,00,000/- 8
with two sureties for the likesum to the satisfaction of the trial Court.
(ii) The petitioner/accused No.4 shall not tamper the prosecution witnesses directly or indirectly.
(iii) He shall not indulge in similar offences.
(iv) The petitioner/accused No.4 shall furnish his permanent address along with I.D. proof before the trial Court.
(v) The petitioner shall take the trial without causing any delay.
Sd/-
JUDGE ckk