Karnataka High Court
Mohamamdshafi S/O Moulasab Gadadavar vs The State Of Karnataka on 13 January, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13th DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
Criminal Petition No.102582 of 2019
BETWEEN:
MAHAMMADSHAFI @ MAHAMMADSAFI
S/O MOULASAB GADADAVAR
AGE: 28 YEARS, OCC: AGRICULTURE
R/O: SHINGANAHALLI,
DHARWAD TQ: & DIST:580001.
.. PETITIONER
(BY SRI. RAVI B. NAIK, SR. COUNSEL AND
SRI. J. BASAVARAJ, ADV.)
AND:
THE STATE OF KARNATAKA
(THROUGH GARAG POLICE STATION
IN.CR.NO.68/2019),
REP.BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD-580011.
.. RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP, ADV.)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.
SEEKING TO ENLARGE HIM ON BAIL IN S.C. NO.157/2019
(CRIME NO.68/2019 REGISTERED BY THE GARAG POLICE
STATION) PENDING ON THE FILE OF HON'BLE IV ADDITIONAL
DISTRICT AND SESSION JUDGE, DHARWAD FOR OFFENCES
PUNISHABLE UNDER SECS. 143, 147, 148, 307, 324, 302, 504
R/W SEC. 149 OF IPC AND SEC. 27 OF THE INDIAN ARMS ACT
1959, IN SO FAR AS THE PETITIONER IS CONCERNED.
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THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner aggrieved by the order dated 29.11.2019 passed in SC No.157 of 2019 by the learned IV Additional District and Sessions Judge, Dharwad, this petition is filed.
2. The case of the complainant is that on 11.07.2019 in the morning at about 8'O clock, Jameela Banu wife of Ibrahim Sab was letting the stagnant rain water towards the backyard of Gudusalamani. Reshma Gudusalamani objected for the same stating that the water should not be let in her backyard. At that point of time, brother of Jameela and her relative one Moulasab Gadadavar started quarrelling with Reshma. It is further alleged that when quarrel was going on, the complainant's elder brother Hassan Sab Gajaveersab Gadadavar, 3 who was the executor of Jamath, came on his motorcycle bearing No.KA.25-Y-2780 and stopped in front of the house of Moulasab Gadadavar and asked the parties as to why they were quarelling. When Hassan Sab was asking about the quarrel, Moula sab Gadadavar, Aseef Rajesab Malagi abused him in a foul language and stated as to who he is to question them. Moula Sab with a club and Aseef with sword assaulted Hassan Sab. The complainant Saddamhussain went to rescue of his brother along with his elder brothers Alla Bakash Gajaveer Sab Gadadavar and Yakub Sab Gajaveer Sab Gadadavar, at that point of time, Akbar Ali Gadadavar with a sword and Tipu Sultan Moula Sab Gadadavar with a club assaulted on the head and on the mouth of Alla Baksh Gajaveer Sab Gadadavar, Mohammad Shafi Moulasab Gadadavar assaulted Yakubsab Gadadavar with a club on the head and on the mouth causing grievous injuries. That the 4 complainant was assaulted by Saddam Moulasab Gadadavar and Jameelabanu Ibrahimsab Saiyadnavar with club on the head and caused bleeding injuries. It is further alleged that it was 10.15 am, the incident occurred and in the incident, the brother of the complainant Hassan Sab, Allabakash and Yakubsab, since had sustained grievous injuries, were taken in a private vehicle to District Hospital for treatment and from there, the complainant's elder brother Allabakash Gadadavanar and Yakub Gadadavar were shifted to Balaji Hospital, Hubballi for better treatment and the complainant continued to take treatment in the district Hospital.
The complainant lodged a criminal case against the petitioner before the Dharwad Rural Circle for the offences punishable under Sections 143, 147, 148, 307, 324 and 504 read with Section 149 IPC. The petitioner approached the trial Court for grant of 5 regular bail in S.C. No.157 of 2019. The trial Court rejected the application on 29.11.2019. The petitioner aggrieved by the order dated 29.11.2019 passed in S.C. No.157 of 2019, has filed this petition.
3. Heard Sri. Ravi B. Naik, learned senior counsel and the learned Government Pleader.
4. Learned senior counsel submitted that the petitioner has lodged a criminal case against the complainant which is registered in Crime No.67 of 2019 before Garag Police Station and subsequently, the complainant has lodged a complaint against the petitioner in Crime No.68 of 2019. He further submits that the police have already filed charge sheet against the petitioner and the petitioner is not required for further investigation. Further, he submits that no injuries are found on the complainant. He further submits that the accident has taken place due to 6 sudden provocation. The petitioner has also sustained injuries and that the accused in Crime No.67 of 2019 are also released by this Court in Criminal Petition No.102229 of 2019. Hence, the petitioner is entitled for parity.
5. Per contra, learned Government Pleader submits that the petitioner has assaulted with a motive and further the statement of the complainant is recorded under Section 164 of the Code of Criminal Procedure and other eyewitnesses. So, there is specific allegation against the petitioner.
6. Heard the arguments and perused the records.
7. It is found that the petitioner has lodged a criminal case against the complainant in Crime No.67 of 2019 and subsequently, the complainant as a counter blast to the complaint filed by the petitioner, 7 has lodged a criminal case against the petitioner in Crime No. 68 of 2019. On perusal of the complaint, no injuries have been found on the complainant and further due to sudden provocation, the petitioner is also attacked by the complainant and others and in order to protect himself, the alleged incident took place. That a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable.
8. As pointed above, that the incident has taken place in a spur of moment and the petitioner, in order to safeguard his life, has defended and further 8 charge sheet has already been filed and the presence of the petitioner is no more required for further investigation. Further, in the complaint lodged by the petitioner, he has made allegations against the complainant and a criminal case was registered for the offence punishable under Section 307 of IPC and this Court has already granted bail to the complainant in the aforesaid criminal petition. In a case and counter case who is aggressive has to be determined later. It is not disputed that the petitioner is a permanent resident of the place within the jurisdiction of the trial Court having moveable and immoveable properties and residing with family members. Therefore, chances of absconding may be remote. At this stage, this Court has to consider as to whether there is possibility of tampering with prosecution witnesses, in case, he is enlarged on bail. So far as the tampering of prosecution witnesses is concerned, necessary 9 conditions may be imposed by the Court on the petitioner. Hence, in view of the facts and circumstances stated above, the trial Court has committed an error in rejecting the application. Hence, this Court is of the considered opinion that the petitioner may be enlarged on bail by imposing necessary conditions to see that he will not abscond or tamper the prosecution witnesses in any manner and will co-operate in the trial of the case. Accordingly, this Court proceeds to pass the following order:
9. The petition is allowed. The petitioner is ordered to be enlarged on bail in connection with S.C. No.157 of 2019 (Crime No.68 of 2019 registered by the Garag Police Station) now pending on the file of learned IV Additional District and Sessions Judge, Dharwad, subject to the following conditions:
i) The petitioner shall execute a personal bond in a sum of Rs.2,00,000/-10
(Rupees two lakh only) with two
sureties for the like sum to the
satisfaction of the trial Court;
ii) The petitioner shall not leave the
jurisdiction of the Court without prior permission;
iii) The petitioner shall attend the Court regularly on every date of hearing;
iv) The petitioner shall co-operate in speedy trial: and
v) The petitioner shall not be involved in the criminal cases of similar nature.
SD/-
JUDGE Kmv