Karnataka High Court
Mr.Azharuddin Bashirahmed Kolhapur vs The State Of Karnataka on 26 June, 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.101007/2019
BETWEEN:
1. MR.AZHARUDDIN BASHIRAHMED KOLHAPUR
AGE.34 YEARS, OCC.BUSINESS OF KIRANA SHOP
R/O H.NO.4805, 1ST MAIN, SHIVAJI NAGAR
BELAGAVI, PIN CODE.590016
2. MR. ASHFAQUE S/O ABDULSALAM KOLHAPURI
AGE.38 YEARS, OCC.BUSINESS OF KIRANA SHOP
R/O H.NO.4805, 1ST MAIN, SHIVAJI NAGAR,
BELAGAVI, PIN CODE.590016
... PETITIONERS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH MARKET P.S. BELAGAVI
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA
DAHRWAD BENCH, DHARWAD PIN CODE.580011
... RESPONDENTS
(BY SMT. SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 438 OF CR.P.C.
SEEKING TO ALLOW THIS CRIMINAL PETITION, BY GRANTING
THE ANTICIPATORY BAIL TO THE PETITIONERS HEREIN WHO IS
ARRAYED AS ACCUSED NO.4 & 5 IN CRIME NO.271/2018 AS
REGISTERED BY THE MARKET POLICE STATION, BELAGAVI,
FOR THE OFFENCES P/U/S 143, 147, 323, 342, 352, 365, 448,
504 & 506 R/W SEC. 149 OF IPC AND U/S 3(1)(r) & (s) OF THE
SC & ST (PREVENTION OF ATROCITIES) ACT, 1989, BY
IMPOSING ANY CONDITIONS.
:2:
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition has been filed by the petitioners/accused Nos.4 and 5 under Section 438 Cr.P.C. praying to release them on anticipatory bail in Crime No.271/2018 of Market Police Station, Belagavi for the offences punishable under Sections 143, 147, 323, 342, 352, 365, 448, 504 and 506 R/w. Section 149 of IPC and Sections 3(1)(r) and (s) of the SC and ST (Prevention of Atrocities) Act, 1989.
2. I have heard the learned counsel appearing for the petitioners and also the learned HCGP for the respondent-State. Learned HCGP submits that, notice has been served on the complainant. The complainant has remained absent.
3. The gist of the complaint is that, the complainant is working as a doctor in Pediatric and was :3: running a clinic at Shivaji Nagar, Belagavi since seven years. It is alleged that, on 13.03.2018 at about 1.00 pm, when he was in his clinic attending the patients, four persons including one Mohsin Pathan and others came inside the clinic and closed the complainant's room. Accused No.1 took the mobile phone and the when the complainant enquired who are those persons and for what purpose they have entered his clinic, at that time accused No.2 threatened the complainant and told him to accompany them and when the complainant refused to go along with them, one of the accused abused the complainant by taking the name of his caste and they had taken him out of his clinic in a car to the house of one Rafiq Mulla. He was confined in the house and accused Nos.2 and 3 have brought a paper and insisted him to write as dictated and other accused persons were guarding outside the house so that no one can enter the house. It is further alleged that, they were insisting the complainant to put his signature on the :4: said papers and when the complainant refused to write as per their discussion, they starting abusing by taking the name of his caste and they also threatened him. On the basis of the private complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioners/accused that already accused Nos. 1 to 3 have been released on bail by the learned District and Sessions Judge and on the ground of parity, the accused/petitioners are also entitled to be released on bail. He further submitted that, insofar as accused Nos. 4 and 5 are concerned, there is no specific overt act. The only allegation against them is that they were guarding outside the house to see that nobody should enter the said house. He further submitted that the alleged offences are not punishable with death or imprisonment for life and only with an intention to inculcate the accused/petitioners, after the charge sheet has been filed, the accused/petitioners have been :5: arrayed as accused. It is his further submission that, even the provisions of Section 18 of the SC/ST Act are not attracted as no such allegations have been made in the complaint or any other material is there as against the petitioners/accused. They are ready to abide by the conditions imposed by this Court and ready to offer sureties. On these grounds he prayed to allow the petition and release the petitioners on anticipatory bail.
5. Per contra, learned HCGP appearing for the respondent - State vehemently argued that the present accused persons were involved in the offence with other accused persons and with a common object they have threatened the complainant to write on a paper that he is having an affair with the wife of accused No.1 and they tress-passed into the complainant's hospital and kidnapped the complainant and confined him in a house and other accused persons were waiting outside.
There is ample material as against the petitioners/accused. It is her further submission that :6: the accused/petitioners are absconding and were not available for the purpose of investigation and interrogation. If the accused/petitioners are enlarged on bail, they may not be available for trial. On these grounds she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. As could be seen from the contents of the complaint and other material, there is no allegation made as against the petitioners/accused Nos. 4 and 5 to show that accused/petitioners have abused the complainant by taking the name of his caste. Prima facie the provisions of the SC/ST Act are not attracted and the bar under Section 18 of the Act will not come in the way to grant anticipatory bail. As could be seen from the records, already accused Nos. 1 to 3 have been released on bail by the III Addl. District and Sessions Judge, Belagavi in Criminal Misc.No.2273/2018 by :7: order dated 10.09.2018. Even on the ground of parity, the accused/petitioners are entitled to be released on bail. Even the alleged offences are not punishable with death or imprisonment for life. As could be seen from the contents of the complaint, the only allegation which has been made against the petitioners/accused Nos.4 and 5 is that they were guarding outside the house to see that nobody should enter the house, where the complainant was confined. No serious overt acts have been alleged against the accused. On these grounds, I feel that if by imposing stringent conditions, if the petitioners are ordered to be released on anticipatory bail, it would meet the ends of justice.
8. In the light of the discussion held by me above, the petition is allowed. In the event of arrest, petitioners/accused Nos.4 and 5 are ordered to be released on anticipatory bail in connection with Crime No.271/2018 of Market Police Station, Belagavi for the offences punishable under Sections 143, 147, 323, 342, :8: 352, 365, 448, 504 and 506 R/w. Section 149 of IPC and Sections 3(1)(r) and (s) of the SC and ST (Prevention of Atrocities) Act, 1989, subject to the following conditions:
i. Each of them shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakh Only) with two sureties for the likesum to the satisfaction of the trial Court..
ii. They shall surrender before the trial Court within fifteen days from today.
iii. They shall not tamper with the prosecution evidence directly or indirectly.
iv. They shall not leave the jurisdiction of the Court without prior permission.
v. They shall mark their attendance before the jurisdictional Police on the 1st day of every month till the trial is concluded.
Sd/-
JUDGE gab