Karnataka High Court
Suhail S/O Ahmed Patel vs The State Through Gandhi Chowk P.S. ... on 13 March, 2015
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF MARCH 2015
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION No.200214/2015
Between:
Suhail S/o Ahmed Patel
Age: 38 years, Occ: Business
R/o Near PDJ High School
Krishna Nagar, District Vijaypur
... Petitioner
(By Sri Arun Chowdapurkar, Advocate for
Sri Ustad Sadat Hussain, Advocate)
And:
The State through
Gandhi Chowk Police Station
Vijaypur
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Petition is filed under Section 439 of Cr.P.C.,
praying to enlarge the petitioner on bail in Crime No.301/2014 of
Gandhi Chowk Police Station, District Vijaypur, which is
registered for the offences punishable under Sections 143, 147,
148, 302, 323, 504, 506, 109, 120(B) r/w Section 149 of IPC and
also for an offence punishable under Section 27 of Indian Arms
Act.
2
This petition coming on for Orders this day, the Court
made the following:
ORDER
The present petitioner is arrayed as accused No.17 in C.C.No.450/2015 on the file of J.M.F.C., Bijapur, which is pending for committal order, for the offences punishable under Sections 143, 147, 148, 302, 323, 120(B) 109, 504, 506 r/w Section 149 of Indian Penal Code and also for an offence punishable under Section 27 of the Indian Arms Act.
2. The brief factual matrix that emanate from the records are that,-
It is alleged that the complainant one Mohaddin Pasha has stated in the first information report that in the year 2011 there was an election of Youth Congress, Bijapur. In the said election, the grand son of the complainant by name Moin Anees had contested against one Mohammed Asif as rival contestant. In the said election, some discrepancy and dispute arose between the parties. In that regard, the said Mohammed Asif gave life threat 3 to Moin Anees and others by showing revolver against them. In this regard, complaint was lodged between the parties. In this background, it is alleged that on the intervening night of 07.11.2014 and 08.11.2014, when the complainant came near house of Bandari, he observed one Muddasar Abdul Samad Qureshi, Altaf, Rajahmed Managuli and others were talking near the bus-stand. At that time, they observed the complainant's sister's son Syed Fayazuddin S/o Mahaboobquadri Mushrif came in his motor cycle and he was talking with his friends near Datri Masjid on a road and at that time, two cars came near them and from the said cars about nine persons named in the complaint, got down and three - four persons caught hold the said Syed Fayazuddin and surrounded him and in fact, some of the accused persons have fired towards said Syed Fayazuddin. Syed Fayazuddin went near the house of Bandari and fell down due to gun shot injuries. It is alleged that accused persons did not leave him and assaulted him with their hands and kicked him with their legs and threatened the surrounding people not to indulge in 4 preventing them from doing away with the life of Syed Fayazuddin. On these allegations, a complaint came to be lodged and the police have investigated the matter and submitted charge sheet.
3. Sri Arun Chowdapurkar, learned counsel appearing for the petitioner vehemently and strenuously with all force argued before the Court making all his efforts to persuade that accused No.17 (petitioner) was not at all involved in commission of any offence as alleged in the charge sheet. He contended that name of the petitioner was not mentioned in the first information report and subsequently, his name has been implicated due to private vengeance. Though it is stated by some of the witnesses that accused No.17/petitioner was holding revolver threatening the people enabling the main culprit to commit the murder of Syed Fayazuddin, but no recovery is made from him. Subsequently, statement of the complainant was recorded on different occasions. In each and every statement, he improved his case implicating some of the persons who are actually not named in 5 the first information report. There is no specific allegation against this petitioner. He never said to have been participated directly in assaulting Syed Fayazuddin. He was arrested on 24.11.2014, since then, he has been in judicial custody and that itself clearly discloses that he is no more required by the police for any further investigation, interrogation etc. He also submits that pre-trial custody should not amount to conviction on the accused. Therefore, looking to the above said circumstances, he may be released on bail.
4. Per contra, the learned Additional State Public Prosecutor appearing for respondent-State has drawn my attention to the statement of eyewitnesses which was recorded by the police on the same day and further statement of the complainant, wherein they all implicated this accused person specifically stating that he was also holding revolver in his hand and shot towards the deceased and was also threatening the people enabling the other accused persons to do away with the life of the deceased. Therefore, at this stage, when the police have 6 invoked Section 149 of IPC, intention of the accused persons who are present at the time of the incident cannot be bifurcated. Hence, the petition is liable to be dismissed.
5. I have heard the arguments of learned counsel appearing for both the parties and I have carefully perused the charge sheet papers. Of-course, absolutely there is no mention of the name of the petitioner in the first information report. It is well recognized principle of law that the first information report need not be an encyclopedia. When the first information report discloses some cognizable offences have been committed by the persons and some other persons were also present, merely because, name of the petitioner is not mentioned in the first information report, it cannot be said that the prosecution story has to be disbelieved at this stage. The Court is bound to look into the other circumstances prevailing in the case to find out as to whether that is sufficient to implicate the accused prima facie at this stage. 7
6. Looking to the statements of eyewitnesses i.e., CWs.11 to 19 recorded by the police, they have categorically stated about the presence of this petitioner and the overt-act of this petitioner specifically stating that this petitioner was also present holding revolver in his hands and shot towards the deceased and also threatening the people so as to enable the main accused persons to do away with the life of the deceased. Though no recovery is made at the instance of the petitioner but nevertheless, eyewitnesses' statements show that he was holding revolver in his hand. Accused No.18 who was also alleged with similar set of facts that he was holding a chopper and was threatening the people enabling the other accused to do away with the life of the deceased, has approached this Court earlier. Considering the facts and circumstances of the case, presence of accused No.18 and his overt-acts this Court rejected the bail petition of accused No.18 stating that intention of the accused cannot be bifurcated at this stage. When this Court has taken such a view so far as other accused who stood on the same footing, it cannot be said that a 8 different view has to be taken so far as this petitioner is concerned, on the same set of facts, when the acts of accused Nos.17 and 18 are almost similar and stand on the same footing, in my opinion, at this stage, petitioner has not made out any ground for grant of bail. Hence, the bail petition deserves to be dismissed. Accordingly, the petition is dismissed.
Sd/-
JUDGE NB*