Karnataka High Court
Anand Siddalingappa Gotadaki vs State Of Karnataka on 2 July, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02 N D DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.100093/2021
C/w.
CRIMINAL APPEAL No.100089/2021
IN CRIMINAL APPEAL No.100093/2021
BETWEEN:
SRI JAGADISH
S/O. DEVARAMAJI CHOUD HARI,
AGE 55 YEARS ,
OCC: BUSINESS ,
R/O. NEAR VEERA BHADRESHWAR TEMPLE,
GOKAK, TAL:
GOKAK - 591307
DIST. BELAGAVI .
...A PPELLANT
(SRI. SANDEESH CHOUTA , S ENIOR COUNSEL
FOR SRI . SRINAND A. PA CHHA PURE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH GOKAK TOWN POLI CE STA TION,
NOW REPRES ENTED BY STATE
PUBLIC PROSECUT OR,
HIGH COURT OF K ARNATAKA,
DHARWAD,
BENCH AT DHARW AD-580011.
:2:
2. DEEPAK SRIKANT I NGALAGI ,
AGE 22 YEARS , OCC: COOLIE,
R/O. APPA AADI J ABAR NAGAR,
GOKAK, DIST. BELAGAVI,
PH. 8861971113
... RES PONDENTS
(SRI. V .M.SHEELV ANT, S PP FOR R1;
SRI. AVINASH M. ANGADI, ADV OCAT E FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S. 12 OF
KARNATAKA CONTROL OF ORGANISED CRIMES ACT, 2000
R/W. SECTI ON 14-A OF SC AND ST (PREVENTION OF
ATROCITIES) ACT, 1989, SEEKING TO ENLARGE THE
APPELLANT/ACCUS ED NO.11 ON BAIL IN SPECIALCA SE
NO.202/ 2020 PEN DING ON THE FILE OF PRL. SESSI ONS
JUDGE (KCOCA SPL. JUD GE) , BELAGAVI ( CRIME
NO.72/ 2020 REGI STERED FOR THE OFFENCES UND ER
SECTIONS 143, 144, 147, 148, 150, 341, 302, 120( B),
212, 201, 109, 115, 504, 506 R/W . SECTION 34, 35, 37
AND 149 OF IPC, SECTION 3( 1)(R), 3( 1)(S), 3(2)( V),
3(2)(V ,A), 8(1)A OF SC/ST (POA ) AMENDMENT ACT,
2016, SECTION 25(1)(A) OF ARMS ACT, 1959 SECTION
25 1 B VI (6) AND (7) OF ARMS (AMENDMENT) ACT,
2019 AND SECTION 3(1)(I) , 3( 2), 3(3), 3(4) ,3(5) AN D 4
OF KARNATAKA CONTROL OF ORGA NIZED CRIMES ACT,
2020, BY THE GOKAK TOWN POLI CE) ON SUCH TERMS
AND CONDITIONS .
IN CRIMINAL APPEAL No.100089/2021
BETWEEN:
ANAND SIDDALINGAPPA GOTADAKI,
S/O. SIDDALINGA PPA GOTADAKI,
AGED ABOUT 44 YEARS,
OCC: DEED WRITER,
R/O. SOMAWARPETH, GOKAK , GOKA K TALUK ,
BELAGAVI DISTRICT
...A PPELLANT
(SRI. RAVI B. NAI K, SENI OR COUNS EL
:3:
FOR SRI . S HIVAKUMAR S. BADAWAD AGI, ADVOCAT E)
AND:
1. THE STATE OF KARNATAKA,
THROUGH GOKAK TOWN POLI CE STA TION,
NOW REPRES ENTED BY STATE
PUBLIC PROSECUT OR,
HIGH COURT OF K ARNATAKA,
HIGH COURT BUILDING,
DHARWAD.
2. DEEPAK SRIKANT I NGALAGI ,
AGE MAJOR,
OCC: AGRI ,
ADIJAMBAVA NAGAR,
GOKAK,
DIST. BELAGAVI .
... RES PONDENTS
(BY SRI. V.M .SHEELVANT, S PP F OR R1;
SRI. AVINASH M. ANGADI, ADV OCAT E FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S. 14A( 2) OF
CR.P.C., SEEKING TO SET ASIDE THE ORDER DATED
01.03.2021 PASS ED BY THE COURT BELOW ON T HE
PETITION FILED BY THE APPELLANT FOR ENLARGING HIM
ON REGULAR BAIL UNDER S ECTION 439 OF THE CODE OF
CRIMINAL PROCED URE CODE IN SPL. CASE NO.202/2020
REGISTERED BY THE RES PONDENT GOKAK TOWN POLICE
FOR THE OFFEN CES PUNISHABLE UNDER SECTION
120(B) , 109, 201, 34, 35, 37 AN D 149 OF I PC A ND
SECTION 3( 2), 3(4) , 3( 5) AND 4 OF KARNATAKA
CONTROL OF ORGANIZED CRIME ACT, 2020 (KCOC) .
THESE CRIMINAL APPEALS COMING ON FOR
ORDERS T HIS DAY , THE COURT MADE THE FOLLOWING:
:4:
COMMON JUDGMENT
Criminal Appeal No.100089/2021 is filed by the accused No.14 and Criminal Appeal No.100093/2021 is filed by the accused No.11. Both the appeals have been filed challenging the order passed by the Principal Sessions Judge, (KCOCA Special Judge), Belagavi in Special Case No.202/2020, dated 01.03.2021, whereunder the bail applications filed by the appellants/accused Nos.14 and 11 have been rejected. Notice to respondent No.2 has been served and learned counsel Sri. Avinash M. Angadi has appeared for respondent No.2.
2. The case of the prosecution is that, based on a complaint lodged by respondent No.2
- complainant on 06.05.2020, Gokak Town Police registered a case in Crime No.72/2020. Initially :5: the case was registered against accused Nos.1 to 3 and some unknown persons for the offences punishable under Sections 143, 147, 148, 307, 504, 506 read with Section 149 of The Indian Penal Code, 1860 (for brevity hereinafter referred to as 'IPC') and Sections 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity hereinafter referred to as SC/ST (POA) Act. Respondent No.2 - complainant states in his complaint that, he is the resident of Jambava Nagar, Gokak and the deceased Siddappa Kanamaddi was State Youth President of Dalit Sangharha Samiti. It is further stated that, accused Gangadhar Shinde and his associates had rivalry with deceased in connection with murder of one Mr. Rohit Patil between Scheduled Caste Community and Maratha Community and :6: on account of the same, there are some cases registered. It is further stated that, on 06.05.2020 at 8.00 p.m., respondent No.2 - complainant along with his friend Siddappa Kanamaddi (deceased), Kiran Shankar Kadatti, Raju Huchhannavar, Prashant Patrut were sitting at Katta of Hanuman Temple, Jambav Nagar and Siddappa Kanamaddi was speaking over phone. During that time, Gangadhar Shinde, Vinayak Hadaginal, Vitthal Pawar along with some other persons came on two-wheeler and auto-rickshaw holding talwar and assaulted Siddappa Kanamaddi and abused him over caste name as "Holya Sulemagana, ninna bidangilla". When the complainant along with other friends tried to save Siddappa Kanamaddi, accused threatened them with dire consequences, in case they interfered. The said persons assaulted Siddappa :7: Kanamaddi and he sustained grievous injuries on his head, nose, left hand and on chest. They immediately shifted him to the Umrani Hospital and later, he was shifted to KLE Hospital, Belagavi. Siddappa has stated the names of some of the accused at the time of his death and the same was also video recorded. Siddappa Kanamaddi died due to severe injuries caused by the accused. After the death of Siddappa Kanamaddi, police have incorporated Section 302 of IPC. During the course of investigation, Inspector General of Police, Northern Range, Belagavi has accorded permission on 17.07.2020 to the Investigating Officer as per the mandate of Section 24(1)(a) of the Karnataka Control of Organized Crime Act, 2000 (for brevity, hereinafter referred to as "KCOC Act") to invoke the provisions of Sections 3 and 4 of KCOC Act :8: upon the application made by the Investigating Officer. After completing the investigation, the charge-sheet has been filed for the offences punishable under Sections 143, 144, 147, 148, 150, 341, 120(B), 302, 109, 115, 212, 201, 504, 506 read with Section 34, 35, 37, 149 of IPC and Section 3 and 4 of KCOC Act and Section 3(1)(s), Section 3(2)(v), Section 3(2)(v,a), 8(1)A of SC/ST (POA) Act and Section 25(1)A, 251(b) of Arms Act, against accused Nos.1 to 17 and 21. Accused Nos.18, 19 and 20 are absconding, as such, the Special Court has issued proclamation.
3. The accusations against the accused Nos.11 to 20 is that, they are the members of Tiger Gang and are aiding accused, assisting and harboring the other accused persons in committing organized heinous offences who have committed the murder of the Siddappa :9: Kanamadi. Some of the accused have made confession before the Superintendent of Police, Gadag and the same was recorded by him under Section 19 of KCOC Act, wherein they have admitted for having murdered Siddappa Kanamadi who belongs to Scheduled Caste. The accused have admitted/revealed in their confession statement about the Tiger Gang being established for the sake of creating fear in the minds of people and they were committing offences for ransom and were collecting hafta from various businessmen in Gokak Town. The accusations against the accused No.11 is that, he was facilitating the above accused financially and assisting them in committing offences by aiding to their requirements and a sum of Rs.30,58,460/- has been seized from his house : 10 : and he has harbored the accused No.2 after murder of Siddappa Kanamaddi.
4. The accusations against the accused No.14 is that, he is involved in land mafia and has engulfed many properties of many people by taking signatures on blank bond papers and he was in touch with accused Nos.1 and 2 who were in judicial custody and he has collected hafta from innocent people on behalf of accused Nos.1 and 2 for getting accused Nos.1 and 2 released on bail. He had telephonic conversations with accused Nos.1, 2 and 19 prior and subsequent to the Crime. He used to purchase lands for lesser price by threatening respective land owners and later he use to sell those properties at a higher price. He used to create fake records and he use to sell them illegally and he has acquired several properties in Gokak town and brought luxurious : 11 : car and leading lavish life. Four criminal cases are pending against him and in one case, he has been acquitted on 04.09.2019. Some sale deeds pertaining to accused Nos.1 and 2 were seized in the car of accused No.14 and the properties involved in those records is worth crores.
5. Heard the arguments of Sri. Sandeesh Chouta, learned Senior Counsel appearing for appellant/accused No.11, Sri. Ravi B. Naik, learned Senior Counsel appearing for accused No.14 and Sri. V.M.Sheelvant, learned State Public Prosecutor for the respondent No.1-State.
6. Learned counsel appearing for respondent No.2 has not addressed separate arguments, but he has assisted the Special Public Prosecutor, at the time of addressing arguments.
: 12 :
7. Learned counsel appearing for the appellant/accused No.11 would contend that, accused No.11 is innocent, has not committed any offence as alleged and he has been falsely implicated in the case. He was not present at the time of incident on the spot and he has no previous criminal cases, he was not part of any conspiracy. He has been involved only on the ground that a cash of Rs.30,58,460/- has been recovered from his house and he has harbored accused No.2 after the incident in his house. He would contend that, there is no motive for the accused No.11 to kill the deceased, he is not part of preparation of attack, he has no knowledge of the incident dated 06.05.2020 and he has not financed. The voluntary statements recorded by the Deputy Superintendent of Police are hit by Section 24 of Cr.P.C. and therefore, the : 13 : admissibility with regard to the confession under Section is not attracted as the confession has to be recorded by the Officer, not below the rank of Superintendent of Police. The reasonable ground enumerated in Section 22(4)(b) of KCOC Act, means more than a prima-facie case, but not proved beyond reasonable doubt. He has placed reliance on the following decisions:
(i) Decision of Delhi High Court in the case of Asif Iqbal Tanha Vs. State of NCT of Delhi in Criminal Appeal No.39/2021, decided on 15.06.2021.
(ii) Judgment of Apex Court in the case of Sudesh Kedia Vs. Union of India, in Criminal Appeal Nos.314-315/2021, decided on 09.04.2021.
(iii) Judgment of this Court in the case of Roopesh R @ Roopesh Gowda Vs. State of Karnataka in Criminal Petition No.2722/2020, decided on 04.11.2020. : 14 :
8. Placing reliance of paragraph No.15 of the Delhi High Court, he has stated that, "Every 'terrorist may be a criminal, but every criminal cannot be given the label of a 'terrorist' only to set in motion the more stringent provisions of TADA...". He further contend that, there is no prima-facie case against the appellant/accused No.11 and therefore, the limitations contained in Section 22(4)(b) of KCOC Act are not attracted and the accused No.11 is entitled for grant of bail with conditions.
9. Learned counsel for the appellant/accused No.14 would contend that, the appellant/accused No.14 is innocent, has not committed any offence as alleged and he has been falsely implicated in the case. The deceased Siddappa Kanamaddi after the incident, has disclosed the identity of the persons who : 15 : assaulted him and that does not include the name of accused No.14. The appellant/accused No.14 was not on the spot, at the time of incident. The house of the accused No.14 has been searched and no incriminating materials were found and only some title deeds were found in his car. The appellant/accused No.14 is not only a Deed Writer, but he does Real Estate Agency and he is a money lender and therefore, the Court cannot draw adverse inference, if any document is found with him. He contends that, presumption contained in Section 23 of KCOC Act has to be raised at the time of trial. The police made search of the house of appellant/accused No.14 on 04.09.2020 and nothing incriminating material was found and he was not arrested at that time and subsequently he was arrested on 11.09.2020, by showing that, he was absconding : 16 : in spite of service of notice on him. The appellant/accused No.14 in his voluntary statement has stated that, apart from Deed writing and Real Estate Agency, he is a money lender, lending money at the interest rate of 4%, 5% and 10% and getting documents as a security for money lent and such documents of accused Nos.1 and 2 were kept in his car as they have availed loan from him. Accused No.14 files income-tax returns and he has purchased property and made payment through Banks and he has pledged property and taken loan. Five cases which were registered against the appellant/accused No.14 are for the offences punishable under Sections 420, 468, 471 etc., and they does not pertain to any offence in respect of Tiger Gang or other offences. He further contends that, the appellant/accused : 17 : No.14 has no connection with the Tiger Gang or its members.
10. Learned Special Public Prosecutor would contend that, accused Nos.1 to 8 have conspired in the Godown of Accused No.11. Accused Nos.1 and 2 contacted accused Nos.11 and 14 over phone for arranging funds for their release on bail and therefore, these accused Nos.11 and 14 started collecting hafta. The confession statement of accused No.11 have been recorded by Superintendent of Police, Gadag, but it is in sealed cover. The sanction accorded by ADGP, Bengaluru dated 27.10.2020 does disclose the name of accused Nos.11 and 14 and it is not necessary that their names should be mentioned in prior permission to invoke KCOC Act against them and he placed reliance on that point on the decision reported in (2007) 3 SCC 633 in the : 18 : case of Vindod G. Asrani Vs. State of Maharashtra, wherein, at paragraph No.9 it is held as under:
"9. ..........Once such approval is obtained, an investigation is commenced. Those who are subsequently found to be involved in the commission of the organized crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of MCOCA."
He contends that, during the raid of house of accused No.11 on 01.09.2020, a cash of Rs.30,58,460/- was seized and he was issued with the notice seeking explanation and he has not given any explanation and he is not an income-tax Assessee and he does not possess PAN card and there is an endorsement to that effect by the Income Tax Authority and this establishes that the said cash is hafta collected as a member of syndicate. In the house : 19 : (godown) of accused No.11 accused Nos.1 to 8 had conspiracy to kill the deceased. The accused No.11 has harbored accused No.2 in his house after the incident. The CDRs collected indicate that, accused No.11 had conversation with accused Nos.1, 2 and 19. He further contends that, accused No.14 has conversation with accused Nos.1 and 2 prior to the incident and subsequent to the incident. The Jailer who gave sim-card to accused Nos.1 and 2 has been arrayed as accused No.21. Accused Nos.11 and 14 were collecting hafta and on behalf of accused Nos.1 and 2 through other accused. Blank cheques, bonds, three agreements of accused No.2 and sale agreement of accused No.3 have been seized from the car of accused No.14. Accused No.14 was getting original documents and getting those properties in his name. : 20 : Accused No.14 with the assistance of accused Nos.1 and 2 was purchasing property at a lesser price by threatening sellers and subsequently use to sell the said property for higher price. The accused No.14 has purchased several properties in his name and in the name of his sister. The voluntary statement of accused Nos.1, 11, 12 and 16 speaks of involvement of accused No.14 in the crime. He further contends that, accused No.14 is involved in five criminal cases for the offences punishable under Sections 420, 468, 471, etc., He places reliance on a decision of the Apex Court in the case of State of Maharastra Vs. Vishwanath Maranna Shetty, reported in (2012) 10 SCC 561, wherein, at paragraph No.29, it is held as under:
"29. ........ The satisfaction contemplated in clauses (a) and (b) of sub-section (4) of Section 21 regarding the accused being not guilty, has to be : 21 : based on "reasonable grounds". Though the expression "reasonable grounds" has not been defined in the Act, it is presumed that it is something more than prima facie grounds. We reiterate that recording of satisfaction on both the aspects mentioned in clauses (a) and (b) of sub- section (4) of Section 21 is sine qua non for granting bail under MCOCA."
11. He further contends that, the order passed by the Special Court is a well reasoned order and it does not call for any interference. He further contends that, in case of grant of bail, the appellants are having criminal background, they will harass the innocent people and they will come in the way of securing the absconding accused and they will tamper the prosecution witnesses.
12. Having heard the learned counsels appearing for the appellants and the learned : 22 : Special Public Prosecutor and perused the records and the impugned order.
13. In order to appreciate rival contentions, it is useful to refer the relevant provisions of KCOC Act, which are extracted herein below. There is no accusations of appellants committing offence under Section 302 of IPC. The appellants/accused having committed the offences under Section 120(B), 109, 115, 150 read with Section 34, 35, 37 and 149 of IPC and Section 3(1)(r), 3(s), 3(2)(V), 32(va) of SC/ST (POA) Act, and 3(1)(i), 3(2), 3(4), 3(5) of KCOC Act. The relevant provisions of KCOC Act reads as under:
2. Definition: (1) In this Act unless the context otherwise requires:
(a) "Abet" with its grammatical variations and cognate expressions, includes.-: 23 :
(i) Communication or association with any person with the knowledge or having reason to believe that such person is engaged in assisting in any manner, an organized crime syndicate:
(ii) passing on or publication of, without any lawful authority, any information likely to assist organized crime syndicate and the passing on or publication of or distinction of any document or matter obtained from the organized crime syndicate; and
(iii) rendering of any assistance, whether financial or otherwise, to the organized crime syndicate;
(d) "Continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-
sheets have been filed before a competent Court within the preceding period of ten : 24 : years and that Court has taken cognizance of such offence:
(e) "Organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf or such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;
(f) "Organised crime syndicate" means a group of two or more persons who acting either singly or collectively, as a syndicate or gang, indulge in activities of organized crime;
3. Punishment for organized crime.- (1) Whoever commits an organized crime shall,-
(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable : 25 : to a fine, which shall not be less than one lakh rupees.
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, which shall not be less than five lakh rupees.
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organized crime or any act preparatory to organized crime, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, which shall not be less than five lakh rupees. (3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, which shall not be less than five lakh rupees.
: 26 :(4) Any person who is a member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine which shall not be less than five lakh rupees.
(5) Whoever holds any property derived or obtained from commission of an organized crime or which has been acquired through the organized crime syndicate funds shall be punishable with imprisonment for a term which shall not be less than three y ears but which may extend to imprisonment for life and shall also be liable to a fine, which shall not be less than two lakh rupees.
4. Punishment for possessing unaccountable wealth on behalf of a member of organized crime syndicate. - If any person on behalf of a member of an organised crime syndicate is,or,at any time has been in possession of movable or immovable property which he cannot satisfactorily account for. He shall be punishable with imprisonment for a term : 27 : which shall not be less than three years but which may extend to imprisonment for a term of ten years and shall also be liable to a fine, which shall not be less than one lakh rupees and such property shall also be liable for attachment and forfeiture, as provided by section 21.
22. Modified application of certain provisions of the Code. - (1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and "Cognizable case" as defined in that clause shall be constructed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in sub-section(2).-
(a) the references to "fifteen days" and "Sixty days" wherever they occur, shall be constructed as references to "Thirty days"
and "ninety days" respectively;: 28 :
(b) after the proviso, the following proviso shall be inserted namely:-
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period up to one hundred and eighty days on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days."
(3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.
(4) Notwithstanding anything contained in the Code no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless-
(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and : 29 :
(b) where the Public Prosecutor opposes the application, 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.
(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act or under any other Act on the date of the offence in question.
(6) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.
(7) The police officer seeking the custody of any person for pre-indictment or pretrial interrogation from the judicial custody shall file a written statement explaining the reason for seeking such custody and also for the delay if any, seeking the police custody. : 30 :
14. Section 22(4)(b) mandates that a person shall not be released on bail if the Court is of the opinion that there are reasonable grounds for believing that the accusations made are prima-facie true. The appellant/accused No.11 is accused of possessing cash of Rs.30,58,460/- and it is unaccounted money and he has no explanation and therefore, it is the money collected as hafta. The explanation offered by the accused/appellant No.11 that he is running two oil shops and the said amount pertains to his oil business and it is not an unaccounted money and it is not collected by hafta. It is not disputed that, accused No.11 is running oil business. The prosecution has collected information from the Income Tax Department that he is not an Income Tax Assessee, not a PAN card holder and therefore, it : 31 : is unaccounted money and it is collected from hafta. Merely because the income tax returns are not filed, it does not mean that, the said amount is collected by hafta as the accused No.1 is a oil merchant. There are no previous criminal cases registered against the accused No.11 as required under Section 2(d) of KCOC Act. The other accusations against the accused No.11 is that, he harbored accused No.2 in his house after the incident of murder of deceased Siddappa. The prosecution has to establish that knowingly the accused NO.11 has harbored the offender in his house. The same has to be considered at the time of trial. The appellant/accused No.11 was not on the spot at the time of incident. He was not part of the conspiracy which alleged to have taken place in his godown between accused Nos. 1 to accused No.8 and another at a place near : 32 : Gnyanadeep College took place on 30.04.2020. There are no phone call conversation between accused Nos.1 and 2 and accused No.11. The learned Special Court has not taken into consideration all these aspects, at the time of considering the bail application of the appellant/accused No.11.
15. The accusations against the appellant/ accused No.14 is that he has a amassed wealth of worth of Rupees 1.8 crore or more and as he is a Deed Writer, he cannot earn Rupees 1.8 crore. The explanation offered by the accused No.14 is that, apart from Deed Writing, he is a money lender and is a Real Estate Agent. He has availed loan of Rs.1.8 crore from different financial institutions. The another accusation is that, he is possession of Sale Deed of accused Nos.1 and 2 in a Innova Car which has been : 33 : seized under Mahazar and he has phone conversations with accused Nos.1 and 2 prior to the incident. The explanation offered by the appellant/accused No.14 is that, he is a money lender used to lend money on interest by getting pledged title documents and in such transaction he has lent money to accused Nos.1 and 2 and therefore, he is in possession of their title documents. In the search of house of accused No.14, no incriminating materials were found. The confession statement of accused No.14 has been recorded by Superintendent of Police and he refused to affix his signature on it, itself goes to show that he retracted from the said confession and he has not confessed at all. The other accusation is that, there are five cases registered against accused No.14 and in one case he has already been acquitted and therefore, he : 34 : has involved in those crimes as a member of organized crime syndicate. The said crimes registered are for the offences punishable under Sections 420, 468, 471, etc., The accused No.14 is a Deed Writer and a Real Estate Agent, used to purchase and sell the properties in his Real Estate Transactions and in those transactions such a case have been registered and they have no relevance to continuing unlawful activity committed by the members of organized crime as organized crime syndicate.
16. After detailed examination of the contentions of the parties and scrutiny of the material on record, I am not satisfied that prima-
facie has been made out against appellants/accused Nos.11 and 14, relating to the offences alleged against them. It is made clear that, these findings are restricted only for : 35 : the purpose of grant of bail to the appellants and the trial Court shall not be influenced by these observations, during the trial.
17. For the aforementioned reasons, the order of the Special Court insofar as appellants/accused Nos.11 and 14 are concerned, is set aside. Both the appeals i.e. Criminal Appeal No.100089/2021 and Criminal Appeal No.100093/2021 are allowed. The order of the Special Court is set aside. The appellants/accused Nos.11 and 14 are granted bail, subject to the following conditions: i) The appellants/accused Nos.11 & 14
shall execute a personal bond for a sum of Rs.5,00,000/- (Rupees five lakh only) each with two sureties for the like sum to the satisfaction of the Special Court.: 36 : ii) The appellants/accused Nos.11 & 14
shall not indulge in tampering the prosecution witnesses.
iii) The appellants/accused Nos.11 & 14 shall attend the Court on all the dates of hearing, unless exempted and co- operate in speedy disposal of the case. iv) The appellants/accused Nos.11 & 14 shall mark their attendance in the jurisdictional Police Station on the first Sunday of every month, till the disposal of the case, registered against them.
Sd/-
JUDGE *Svh/-