Karnataka High Court
Abishek @ Abhi vs State Of Karnataka on 13 March, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:10472
CRL.P No. 13327 of 2023
C/W CRL.P No. 12797 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 13327 OF 2023
C/W
CRIMINAL PETITION NO. 12797 OF 2023
IN CRL.P.NO.13327/2023:
BETWEEN:
1. SUHAS SHETTY @ SUBHAS
S/O MOHAN SHETTY
AGED ABOUT 29 YEARS
R/AT PULIMAJALU HOUSE
KARIMBAILU, KAVVALAMADOOR
VILLAGE, BANWAL TALUK - 575 030
DAKSHINA KANNADA DISTRICT.
2. MOHAN SINGH @ NEPALI MOHAN
S/O PREM SINGH
AGED ABOUT 26 YEARS
R/AT PREMA NILAYA
KAVINAKALLU, 2ND CROSS ROAD
Digitally signed
by B A KULAI, SURATHKAL
KRISHNA MANGALURU - 575 005.
KUMAR
Location: HIGH ...PETITIONERS
COURT OF
KARNATAKA (BY SRI B.V. ACHARYA, SR. COUNSEL FOR
SRI RAJASHEKAR S, ADV.)
AND:
STATE OF KARNATAKA
BY SURATHKAL POLICE STATION
REP BY S P P HIGH COURT BUILDING
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI B.N. JAGADEESHA, ADDL.S.P.P A/W
SRI RANGASWAMY R, HCGP)
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NC: 2024:KHC:10472
CRL.P No. 13327 of 2023
C/W CRL.P No. 12797 of 2023
THIS CRL.P FILED U/S 439 CR.PC PRAYING TO ENLARGE THE
PETITIONERS ON BAIL IN THE CR.NO.62/2022 REGISTERED IN
SURATHKAL POLICE STATION, MANGALURU CITY, D.K. DISTRICT
FOR THE OFFENCE P/U/S 143, 147, 148, 504, 326, 302, 506, 120(B),
201, 204, 202, 212, 118 R/W SEC. 149 OF IPC, PENDING ON THE
FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE AT MANGALURU
IN S.C.NO.43/2023.
IN CRL.P.NO.12797/2023:
BETWEEN:
ABISHEK @ ABHI
S/O MURALIDHAR
AGED ABOUT 22 YEARS
R/AT H.NO.3-197A/2
NERA NARAYANAGURU COLLEGE
KATIPALLA, 3RD BLOCK, SURATHKAL
MANGALURU - 575 030.
...PETITIONER
(BY SRI./SMT : RAJASHEKAR S)
AND:
STATE OF KARNATAKA
BY SURATHKAL POLICE STATION
REP BY S.P.P HIGH COURT BUILDING
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. B.N. JAGADEESHA, ADDL.S.P.P A/W
SRI RANGASWAMY R, HCGP)
THIS CRL.P FILED U/S 439 CR.PC PRAYING TO ENLARGE THE
PETITIONERS ON BAIL IN THE CR.NO.62/2022 REGISTERED IN
SURATHKAL POLICE STATION, MANGALURU CITY, D.K. DISTRICT
FOR THE OFFENCE P/U/S 143, 147, 148, 504, 326, 302, 506, 120(B),
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NC: 2024:KHC:10472
CRL.P No. 13327 of 2023
C/W CRL.P No. 12797 of 2023
201, 204, 202, 212, 118 R/W SEC. 149 OF IPC, PENDING ON THE
FILE OF IST ADDL. DISTRICT AND SESSIONS JUDGE AT MANGALURU
IN S.C.NO.43/2023.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Accused nos.1 to 3 in S.C.No.43/2023 pending before the Court of I Addl. District & Sessions Judge, D.K., Mangaluru, arising out of Crime No.62/2022 registered by Surathkal Police Station, Mangaluru City, for the offences punishable under Sections 143, 147, 148, 504, 326, 302, 506, 120B, 201, 204, 202, 212, 118 read with 149 IPC, are before this Court under Section 439 Cr.PC in these two petitions.
2. Heard the learned Counsel for the parties.
3. FIR in Crime No.62/2022 was registered by Surathkal Police Station, Mangaluru City, on the complaint of Mohammed Shahil lodged on 28.07.2022 initially for the offences punishable under Sections 143, 147, 148, 504, 326, 307, 302, 506, 149 IPC against unknown persons. During the course of investigation, the petitioners herein were arrested on 02.08.2022. Investigation in the case is completed and charge -4- NC: 2024:KHC:10472 CRL.P No. 13327 of 2023 C/W CRL.P No. 12797 of 2023 sheet has been filed. Bail application filed by the accused nos.1 & 3 before the Trial Court in S.C.No.43/2023 was dismissed on 08.12.2023 and the bail application filed by accused no.2 in S.C.No.43/2023 was dismissed on 25.11.2023. Therefore, they are before this Court in these two petitions.
4. Sri B.V.Acharya, learned Senior Counsel appearing on behalf of the petitioners submits that the assailants were strangers to the complainant and to the eye-witnesses. Though in the complaint it was mentioned that the assailants had arrived to the scene of offence in a car bearing registration No.KA-19-7438, subsequently in the further statement, it was stated that the assailants had arrived in the car bearing registration No.KA-19-MJ-8496. The owner of the said car - accused no.7 was arrested on 30.07.2022 and his statement was recorded on 31.07.2022. Based on his statement, accused nos.1 to 6 were arrested on 02.08.2022. The CCTV footages of the scene of offence were recovered by the police on 30.07.2022 under a mahazar. In the said mahazar dated 30.07.2022, the name of three petitioners is found and it is mentioned that they are the assailants of deceased Mohammed Fazil. He submits that the statement of accused no.7 was -5- NC: 2024:KHC:10472 CRL.P No. 13327 of 2023 C/W CRL.P No. 12797 of 2023 recorded only on 31.07.2022. FIR was registered against unknown persons, and therefore, on 30.07.2022, the name of accused petitioners could not have found place in the mahazar when there is absolutely no material in the charge sheet to show that they were identified by anybody. He, accordingly, prays to allow the petitions.
5. Per contra, learned Addl. SPP has opposed the petition. He submits that the complainant and other eye-witnesses have identified the accused in the test identification parade that was held on 16.08.2022. CWs-2 to 8 are the eye-witnesses to the incident. Without there being any delay, their statements have been recorded. He submits that accused nos.1 to 3 are persons with criminal antecedents, and therefore, the police have identified them and accordingly their name is found in the recovery mahazar of the CCTV footages. He submits that there is sufficient material to connect the petitioners to the crime and the incident in question had taken place in the presence of the public, and accordingly, he prays to dismiss the petitions.
6. In the complaint that was lodged by Mohammed Shahil on 28.07.2022 at about 22.30 hours, it is mentioned that on -6- NC: 2024:KHC:10472 CRL.P No. 13327 of 2023 C/W CRL.P No. 12797 of 2023 28.07.2022 at about 8.00 p.m., when the complainant was riding pillion along with deceased Mohammed Fazil in the scooter bearing registration No.KA-19-HH-9827, Mohammed Fazil allegedly told him that about 3 to 4 persons were following them in two motor bikes and a white colour car. When they stopped the scooter near the shop of B.Jesh, three persons who were wearing masks and armed with weapons got down from the car and they started assaulting Mohammed Fazil. They also allegedly threatened the complainant with dire consequences in the event he tried to interfere, and thereafter, they escaped from the spot in the car in which they had arrived. He has mentioned in the complaint that they had arrived in the car bearing registration No.KA-19-7438 which was white in colour.
7. During the course of investigation, complainant's further statement was recorded and in the said statement, he has stated that by mistake he had mentioned the registration of the car number wrongly and the correct registration number was KA-19-MJ-8496. Thereafter, the police had arrested accused no.7 who is the registered owner of the said car and his statement was recorded on 31.07.2022. Accused no.7 allegedly had stated that he had rented the car to accused nos.4 & 5. -7-
NC: 2024:KHC:10472 CRL.P No. 13327 of 2023 C/W CRL.P No. 12797 of 2023 After recording the statement of accused no.7, the police had arrested accused nos.1 to 6 on 02.08.2022 and accused no.8 was arrested on 17.08.2022, and after completing the investigation, the police had filed charge sheet against eight persons. Petitioners are arrayed as accused nos.1 to 3 in the charge sheet.
8. As per the complaint averments, the assailants who got down from the car were wearing masks, and therefore, the complainant and the other eye-witnesses had not identified them. The physical features of the assailants was not mentioned in the complaint. On 30.07.2022, the police have recovered the CCTV footage which contained footages of the alleged incident that had taken place on 28.07.2022. The recovery of CCTV footage was made under a mahazar dated 30.07.2022 and in the said mahazar, the name of the petitioners herein is found and it is stated that they are the assailants of deceased Mohammed Fazil.
9. There is nothing on record to show that as to how the name of the petitioners herein was mentioned in the recovery mahazar dated 30.07.2022 and how they were referred to as -8- NC: 2024:KHC:10472 CRL.P No. 13327 of 2023 C/W CRL.P No. 12797 of 2023 the assailants of deceased Mohammed Fazil. Though learned Addl. SPP has contended that since the petitioners have criminal antecedents, the police have identified them, there is no such record which is made available to this Court which would go to show that the police had identified the accused who were seen in the CCTV footage which was recovered under the mahazar dated 30.07.2022.
10. Undisputedly, the statement of accused no.7 was recorded on 31.07.2022 and arrest of all other accused persons was subsequent to the same. In the statement of the eye- witnesses recorded initially during the course of investigation, they have not named any one of the accused and they have stated that the assailants were strangers.
11. Learned Addl. SPP has contended that accused no.1 has four criminal cases against him and the other two accused are also having criminal background. He submits that as against accused no.1 there is one case registered for the offence punishable under Section 302 IPC and the other cases registered against the petitioners are not of serious nature. -9-
NC: 2024:KHC:10472 CRL.P No. 13327 of 2023 C/W CRL.P No. 12797 of 2023
12. The material made available by the learned Addl. SPP to the court would go to show that petitioner no.1 is accused in Crime No.78/2020 which is registered for the offences punishable under Sections 307 & 302 IPC. However, in the said case, there are no serious allegations against petitioner no.1 herein. The fact that there are certain criminal cases registered against the accused itself cannot be a ground to reject the bail petition, when the accused have otherwise made out a prima facie case for grant of bail.
13. In the case on hand, the FIR was registered against unknown persons and without there being any material on record, in the recovery mahazar of the CCTV footages after seeing the video footage, it is mentioned that the petitioners are the assailants of deceased Mohammed Fazil. This serious discrepancy has remained unexplained by the prosecution. Under the circumstances, I am of the opinion that the petitioners have made out a case for grant of regular bail. Accordingly, the following order:
14. The petitions are allowed. The petitioners/accused nos.1 to 3 are directed to be enlarged on bail in in S.C.No.43/2023
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NC: 2024:KHC:10472 CRL.P No. 13327 of 2023 C/W CRL.P No. 12797 of 2023 pending before the Court of I Addl. District & Sessions Judge, D.K., Mangaluru, arising out of Crime No.62/2022 registered by Surathkal Police Station, Mangaluru City, for the offences punishable under Sections 143, 147, 148, 504, 326, 302, 506, 120B, 201, 204, 202, 212, 118 read with 149 IPC, subject to the following conditions:
a) Petitioners shall execute personal bond for a sum of Rs.1,00,000/- each with two sureties for the likesum, to the satisfaction of the jurisdictional Court;
b) The petitioners shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts their appearance for valid reasons;
c) The petitioners shall not directly or indirectly threaten or tamper with the prosecution witnesses;
d) The petitioners shall not involve in similar offences in future;
e) The petitioners shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against them is disposed off.
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NC: 2024:KHC:10472
CRL.P No. 13327 of 2023
C/W CRL.P No. 12797 of 2023
f) The petitioners shall mark their
attendance before the Station House Officer of Surathkal Police Station, Mangaluru city, on every alternative Sunday between 10.00 a.m. and 2.00 p.m. till the case registered against them is disposed of before the Trial Court.
Sd/-
JUDGE KK