Karnataka High Court
Sri Maresh S/O Nagappa vs State Of Karnataka on 7 November, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 103162 of 2022
c/w CRL.P.NO.103163/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103162 OF 2022
c/w CRIMINAL PETITION NO. 103163 OF 2022
IN CRL.P.NO. 103162 OF 2022
BETWEEN:
SRI MARESH S/O NAGAPPA
AGE. 28 YEARS, OCC. AGRICULTURIST,
R/O. MORATLA KORACHARAKATTI
TQ. SONDUR, DIST. BALLARI
...PETITIONER
(BY SRI. HANUMESH M. DESAI FOR SRI.NEELENDRA.D.GUNDE, ADVs.)
AND:
STATE OF KARNATAKA
BY BETAGERI POLICE STATION,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING, DHARWAD-580001
...RESPONDENT
(BY SRI. PRASHANTH V. MOGALI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CR.PC., SEEKING TO GRANT HIM ANTICIPATORY BAIL AND
DIRECT RESPONDENT POLICE TO RELEASE HIM ON BAIL IN THE
EVENT OF THEIR ARREST BY THE RESPONDENT POLICE IN THE
CRIME NO.67/2009 OF BETAGERI POLICE REGISTERED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 395, 397 R/W 149 OF
IPC, IN SO FAR AS PETITIONER/ACCUSED NO.7 IS CONCERNED.
IN CRL.P.NO. 103163 OF 2022
BETWEEN:
SRI TATAYYA S/O TIMMAPPA
AGE. 24 YEARS, OCC. AGRICULTURE,
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CRL.P No. 103162 of 2022
c/w CRL.P.NO.103163/2022
R/O. MORATLE KORACHARATTI-583119
TQ, SANDUR, DIST. BALLARI
...PETITIONER
(BY SRI. HANUMESH M. DESAI FOR SRI.NEELENDRA.D.GUNDE, ADVs)
AND:
STATE OF KARNATAKA
BY BETAGERI POLICE STATION
REPRESENTE BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD-580001
...RESPONDENT
(BY SRI. PRASHANTH V. MOGALI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.PC., SEEKING TO ENLARGE HIM ON BAIL IN CC NO.
1491/2019 PENDING ON THE FILE OF THE JMFC-II COURT AT
GADAG BEING TRIED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 395, 397 R/W 149 OF IPC REGISTERED WITH BETAGERI
POLICE STATION IN CRIME NO. 67/2009.
THESE CRIMINAL PETITIONS ARE COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Criminal Petition No.103162/2022 is filed by accused No.7 under Section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking anticipatory bail and Criminal Petition No.103163/2022 is filed by accused No.9 under Section 439 of Cr.P.C. seeking bail. Both the petitions are filed in respect of -3- CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 Betageri Police Station Crime No.67/2009 registered for the offences punishable under Sections 395 and 397 read with Section 149 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) pending in CC No.1491/2019.
2. The case of the prosecution is that, one Anand, s/o Thippanna Asoot, has lodged the complaint on 16.11.2009 when he was admitted in the District Hospital, Gadag, stating that he is working as a cashier in L.S. Parvatgoudar petrol bunk situated at Gadag-Betageri road and in the said petrol bunk (i)Mahammad Rafiq Allasab Naduvina Mani (ii) Huchchasab Thippasab Allakeri were working as helpers and one Shivappa Yallappa was working as night watchman. It is further stated that on 15.11.2009, after completing their work, they slept in the petrol bunk keeping cash of Rs.2,000/- in the pant pocket. When he was sleeping, he felt some assault on his chin and when -4- CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 he got up there were persons around him and they snatched cash of Rs.2,000/- from his pant pocket and they dragged him and put him in toilet situated behind the petrol bunk and took keys of petrol bunk and he latched the toilet door from inside with fear of assault and he screamed and at that time, his assistant and watchman and other persons residing near Kamal hotel came shouting and the said persons were 5 in numbers who were aged 20-25 years and his Nokia mobile phone set, worth Rs.1,500/-, was also snatched. He sustained injury on his chin and lips and the said incident occurred at 2:00am on 16.11.209. The Police after investigation filed charge sheet against 14 accused persons. A case came to be registered against accused Nos.1 to 5 in SC No.37/20011 against accused No.12 in SC No.19/2013 and against accused No.14 in SC No.45/2013. The said 3 cases came to be disposed off and the accused involved in the aforesaid cases are acquitted. As accused Nos.7 to 9 and 13 were -5- CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 absconding, split up charge sheet came to be filed against them and a case came to be registered in CC No.1491/2019. The petitioner in Criminal Petition No.103162/2022 i.e. accused No.7 apprehending his arrest has filed Criminal Miscellaneous No.326/2022 seeking anticipatory bail and the same came to be rejected by the learned Principal District and Sessions Judge, Gadag, by order dated 01.10.2022. accused No.9 who was in custody in another case i.e. in Kukanoor PS Crime No.105/2019 came to be secured under body warrant and he is in judicial custody since 30.08.2022. Accused No.9 filed Criminal Miscellaneous No.327/2022 seeking bail and the same came to be rejected by the learned Principal District and Sessions Judge, Gadag, dated 01.10.2022. Therefore, accused Nos.7 and 9 are before this Court seeking anticipatory bail and bail respectively.
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3. Heard the arguments of the learned counsel appearing for the petitioners and the learned High Court Government Pleader for the respondent- State.
4. The learned counsel for the petitioners would contend that the complaint came to be registered against unknown persons and subsequently charge sheet has been filed against 15 accused persons. It is his further submission that split up case is registered against these petitioners i.e. accused Nos.7 and 9 in CC No.1491/2019. The case registered against other accused i.e. accused Nos.1 to 5, 12 and 14 have been disposed off and they are acquitted. It is his further submission that no test identification parade has been conducted. It is his further submission that no serious overt acts are alleged and the accusation levelled against the petitioners is that they along with other accused i.e. accused Nos.6, 8, 10 to 15 were keeping watch when -7- CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 accused Nos.1 to 5 entered the petrol bunk and committed robbery. It is his further submission that there is no recovery from accused No.9. It is his further submission that as the other accused persons are acquitted, these petitioners are also entitled for grant of bail/ anticipatory bail. With this, he prayed to allow the petitions.
5. Per contra, learned High Court Government Pleader would contend that since last 13 years these petitioners were absconding. Therefore, case against them came to be split up. It is his further submission that the wound certificate shows that the injured/complainant has sustained grievous injury. It is his further submission that accused No.7 was aware of the pendency of the case registered against him and he had earlier filed Criminal Miscellaneous No.965/2017 and it was rejected on 23.01.2018. Thereafter also for the last more than 4 years, he is said to be absconded. It is his further submission -8- CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 that charge sheet material show prima facie case against these petitioners. With this, he prayed to reject the petitions.
6. Having regard to the submission made by the learned counsel for the petitioners and the learned High Court Government Pleader, this Court has gone through the charge sheet records and the order passed by the Sessions Court.
7. As these petitioners were absconding, a split up case came to be filed and it came to be registered in CC No.1491/2019 for the offence punishable under Sections 395 and 397 read with Section 149 of IPC. The petitioner in Criminal Petition No.103162/2022 i.e. accused No.7 was aware of the criminal case registered against him and he in the year 2017 filed Crl.Misc.No.965/2017 seeking anticipatory bail and the same came to be rejected by the Sessions Court on 23.01.2018. Therefore, this petitioner/accused No.7 was aware of -9- CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 the pendency of the criminal case against him but still he remained absconded and was not available for trial. The offences alleged against the petitioner/accused No.7 is heinous offence punishable with death or imprisonment for life. Therefore, the petitioner/accused No.7 is not entitled for discretionary relief of anticipatory bail.
8. The petitioner in Criminal Petition No.103163/2022 i.e. accused No.9 against whom split up charge sheet is registered in CC No.1491/2019 and he came to be secured on 30.08.2022. Since then, he is in judicial custody. He was also involved in Kukanoor Police Station Crime No.105/2009 and he was in judicial custody in that case. Therefore, he was secured under body warrant in the instant case.
9. Learned counsel for the petitioner submitted that accused No.9 has been granted bail in Kukanoor PS Crime No.105/2009. As the
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CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 petitioner/accused No.9 is in judicial custody since 30.08.2022, he is not required for custodial interrogation. The petitioner/accused No.9 has not produced any address/identify proof to show that he is residing in the address mentioned in the cause title of the petition.
10. The main objection of the prosecution is that, if the petitioner/accused No.9 is granted bail, he will abscond and will not be available for trail, can be met with by imposing stringent conditions. Hence, the following:
ORDER Criminal Petition No.103162/2022 filed by accused No.7 under Section 438 of Cr.P.C. is dismissed.
Criminal Petition No.103163/2022 filed by accused No.9 under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.9 is ordered to be released on bail in Crime
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CRL.P No. 103162 of 2022 c/w CRL.P.NO.103163/2022 No.67/2009 of Betageri Police Station subject to the following conditions:
i) The petitioner/accused No.9 shall execute a personal bond for a sum of Rs.1,00,000/-
(Rupees one lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.
ii) The petitioner/accused No.9 shall not indulge in tampering the prosecution witnesses.
iii) The petitioner/accused No.9 shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.
iv) The petitioner/accused No.9 shall produce any one of the identify/address proof before the jurisdictional Court namely Aadhar card, Voter ID or driving licence.
Sd/-
JUDGE kmv