Karnataka High Court
Moinuddin Dada Saab Patel S/O Dada Saab vs State Of Karnataka on 15 June, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15 T H DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.100450/2021
C/W
CRIMINAL PETITION NO.100452/2021
AND
CRIMINAL PETITION.100743/2021
IN CRL.P. NO.100450/2021
BETWEEN
MOINUDDIN @ MOIN DADA
SAAB PATEL @ PA TIL S/O DADA SAA B
AGED ABOUT 29 YEARS,OCC: LORRY BUSINESS
RESIDING AT: N O BADGER PLOT,
MADIHAL ROAD , D HARWAD 580006.
...PETITIONER
(BY SRI.SIRAJ UDDIN AHMED,ADV .)
AND
STATE OF KARNATAKA
BY OLD HUBLI POLICE STATION ,
REPRES ENTED BY THE HIGH COURT
GOVERNMENT PLEADER,
HIGH COURT BUILDINGS,
AT DHARWAD 580001
...RESPONDENT
(BY SRI.RAMESH B.CHI GARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF
CR.P.C., S EEKING TO EN LARGE T HE PETITIONER /
2
ACCUSED NO.5 ON BAIL F OR THE OFFENCE
PUNISHABLE U/S 143, 147, 148, 120(B) , 302, 201,
287, 506 R/W 149 OF I PC AND SECTION 25 OF ARMS
ACT IN CR.NO.90/ 2020 OF OLD HUBLI POLICE
STATION PENDING ON THE FILE OF THE IV ADDL.
CIVIL J UDGE AND JMFC HUBLI AT DHARWAD.
IN CRL.P.NO.100452/2021
BETWEEN
SHAHJAHAN S/ O A SHRAF K.
AGED ABOUT 24 YEARS,
RESIDING AT N O.706,
1ST MAIN, 1ST CROSS,
SHIVARATHESHWA R NAGAR,
BINNY MANTAPPA B LAYOUT,
MYSORE 570021.
...PETITIONER
(BY SRI.SIRAJ UDDIN AHMED, ADV.)
AND
STATE OF KARNATAKA
BY OLD HUBLI POLICE STATION ,
REPRES ENTED BY THE HIGH COURT
GOVERNMENT PLEADER,
HIGH COURT BUILDINGS,
AT DHARWAD 580001
...RESPONDENT
(BY SRI.RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF
CR.P.C., S EEKING TO EN LARGE T HE PETITIONER /
3
ACCUSED NO.12 ON BAI L F OR THE OFFENCE
PUNISHABLE U/S 143, 147, 148, 120(B) , 302, 303,
201, 387, 506 R/ W 149 OF I PC AN D SEC.25 OF ARM S
ACT, IN CR NO.90/ 2020 OF OLD HUBLI POLICE,
DHARWAD, PENDI NG ON THE FILE OF THE IV ADD.
CIVIL J UDGE AND JMFC HUBLI AT DHARWAD.
IN CRL.P.NO.100743/2021
BETWEEN
1. AFTAB
S/O MOHAMMEDALI
BEPARI , A GE 23 Y EARS,
OCC:STUD ENT SOFTWEAR ANALYSIS ,
R/O MANKILLA , D HARWAD
2. TOUSIF
S/O SADIQ
NIPPANI , A GE 24 YEARS,
OCC: SCRA P BUSI NESS,
R/O SHAIKH COMPOUND,
MALAPUR DHARWA D
3. ATIYAB KHAN
S/O AMANULLAHA KHAN TADKOD,
AGE 23 YEARS ,
OCC:STUD ENT ST UDYING IN
ENGINEERING VII SEMESTER,
R/O MADARMADDI, MENSINKAI ONI,
DHARWAD
4 . AMEER
S/O MOHAMMED S HAFI TAMATGAR
AGE: 22 YEARS ,
OCC:STUD ENT ST UDYING IN
M.COM, R/O ISLA MPUR ROAD ,
4
OLD HUBBA LLI ,
HUBBALLI, DIST: DHARWAD
...PETITIONERS
(BY SRI.K M SHIRALLI, ADV .)
AND
THE STATE OF KARNATAKA
THROUGH POLICE INSPECTOR OF
OLD HUBBA LLI P.S ., HUBBALLI,
R/BY STATE PUBLI C PROSECUTOR,
HIGH COURT OF K ARNATAKA
BENCH DHARWAD
...RESPONDENT
(BY SRI.RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF
CR.P.C., SEEKING TO RELEAS E T HEM ON BAIL IN
C.C.NO.1619/2020 REGISTERED FOR THE OFF ENCES
PUNISHABLE UND ER SECTIONS 143, 147, 148, 120B,
302, 303, 201, 387, 506 R/W SECTION 149 OF IPC
AND UNDER S ECT ION 25 OF INDI AN ARMS ACT OF
1959, PENDING ON THE FILE OF THE IV ADDITIONAL
CIVIL J UDGE AND JMFC COURT, HUBBALLI .
THESE CRIMINAL PETITIONS COM ING ON FOR
FURTHER HEARIN G THIS DAY, THE COURT MADE THE
FOLLOWING:
5
ORDER
Crl.P.No.100450/2021 has been filed by accused No.5, Crl.P.No.100452/2021 has been filed by accused No.12 and Crl.P.No.100743/2021 has been filed by accused Nos.1 to 4. All the three petitions have been filed under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.90/2020 of Old Hubballi Police Station for the offences punishable under Sections 143, 147, 148, 120B, 302, 303, 201, 287, 506 r/w 149 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 25 of the Indian Arms Act, 1959 (hereinafter referred to as the 'Arms Act', for brevity). Since all the three petitions are arising out of the same crime, they are taken together for disposal.
2. It is the case of the prosecution that accused No.6 is a convict prisoner presently lodged in 6 Mysore Central prison. When he was lodged in Dharwad prison he came into contact with the deceased Irfan @ Fruit Irfan. At that time accused No.5 was introduced by another prisoner named Swami. When accused No.6 came to Court, accused No.5 introduced accused No.1-Aftab Bepari to accused No.6. There was a dispute regarding Survey No.394 for 6 acres 30 guntas of land belonging to CW- 160/Mujeeb Ur Rahman and the case is pending before this Court in respect of the said land. In the meantime, accused No.5 introduced CW-160 to accused No.6 to solve the dispute that the deceased has illegally acquired the disputed land. Accused No.6 gave assurance to CW-160 that deceased is known to him he will solve the issue. At the same time accused No.1 and accused No.5 informed accused No.6 that deceased Irfan is collecting roll call / Hafta in the name of accused No.6. Believing the said version of 7 accused Nos.1, 5 and accused No.6 called deceased over phone and demanded him to give Rs.25,00,000/- but the same was denied by deceased and he gave reply that you are in jail and you become old and you cannot do anything and abused him in filthy language. Therefore, accused No.6 became angry against the deceased Irfan and decided to kill him and hatched conspiracy with other accused. In furtherance of the said conspiracy accused No.12 and 13 purchased sim cards in the name of charge sheet witnesses and instigated accused Nos.1 to 5 to kill the deceased on the instructions of accused No.6, all the accused involved in conspiracy. That on 06.08.2020 there was a marriage reception of one Harbaz near Gadihal cross, Karwar road, nearby Altaj Hotel. After completion of reception ceremony complainant, Irfan Syed (deceased) Akhil Raichur/CW-55, Shabbir Gudamala/CW-57, Ahammed Saleem Shek/CW-58 8 and others were standing in front of Altaj Hotel and at that time it was 5.30 p.m. At that time three persons came in Bullet motorcycle and other three persons on another motorcycle to that spot. One person sitting on Bullet motorcycle got down and shot at deceased Irfan Syed with pistol. Another person came from their behind and shot the deceased Irfan Syed on his head portion and all of them fled away on their motorcycles. It is the case of the prosecution that the petitioners/accused Nos.1 to 5 and 12 have assisted and provided weapon to accused Nos.7 to 10 sharp shooters at the instance of accused No.6. It is further case of the prosecution that accused Nos. 1 and 2 were at the spot on motorcycle and after the fire shot by accused Nos.7 to 10, they took them on their motorcycle from the spot and went away. Based on the complaint of Usman Sheak, FIR was lodged in Crime No.90/2020 for the offences under Sections 9 143, 147, 148, 307 of IPC and Section 25 of Arms Act. After investigation, charge sheet has been filed for the offences punishable under Sections 143, 147, 148, 120(B), 302, 201, 387, 506 r/w Section 149 of IPC and Section 25 of Arms Act against the accused persons. Therefore, the accused persons are before this Court seeking regular bail.
3. Heard the learned counsel Sri.Sirajuddin Ahmed / counsel appearing for the petitioners / accused Nos.5 and 12 and Sri.K.M.Shiralli, counsel for petitioners/accused Nos.1 to 4 and the learned High Court Government Pleader for the respondent-State.
4. It is the contention of the learned counsel for the petitioners/accused Nos.5 and 12 that the petitioners are innocent and they have not committed any offence as alleged against them and they have been falsely implicated in the case. The accused 10 Nos.5 and 12 were not present at the crime scene. The accused No.5 is a resident of Dharwad and accused No.12 is resident of Mysore and offence has taken place in old Hubballi. The accusations leveled against the accused No.5 is that he introduced "accused No.1 to accused No.6". The accusation leveled against accused No.12 is that he withdrawn money and gave it to accused No.13, in-turn he gave it to accused No.13 and in turn he gave it to accused No.6. He further contended that the charge sheet has been filed and it runs into more than 1000 pages and trial not likely to be concluded in the near future. The Name of accused Nos.5 and 12 are not mentioned in the FIR/Complaint and there are no criminal antecedents of the accused Nos.5 and 12 and there is no recovery and no witnesses have directed their names. He further contended that accused No.13 who is similarly placed to that of accused No.5 and 12 have 11 been granted bail in Crl.P.No.100183/2021 by order dated 02.03.2021 and therefore, the accused Nos.5 and 12 are also entitled for grant of bail on the ground of parity. With this he prayed to allow the petition filed by the accused Nos.5 and 12.
5. Learned counsel Sri.K.M.Shiralli, for petitioners/accused Nos.1 to 4 contended that the petitioners are innocent and they have not committed any offence as alleged against them and they have been falsely implicated in the case. The names of the accused Nos.1 to 4 are not mentioned in the Complaint/FIR. The deceased Irfan Syed was a rowdy sheeter and he was involved in many murder cases and extortion. He further contended that even though accused Nos.1 and 2 were on the spot, there are no overt acts alleged against them. The eye witnesses namely CW-55 to 60 have not stated the names of accused Nos.1 to 4. The accused No.1 is aged 23 12 years and is a student of software analysis. Accused No.3 is aged 23 years and is a student of Engineering, VII semester and accused No.4 is aged 22 years and is a student of M.Com and accused No.2 is aged 24 years and is doing scrap business in Dharwad. If all these young petitioners are continued in prison, it will affect their education and they will come in contact with hardened criminals. The Investigating Officer has seized weapons, mobiles at the instance of the petitioners and therefore, they are not required for custodial interrogation. He further contended that the charge sheet filed contains more than 1000 pages and 158 witnesses and there are no chances of concluding the trial in the near future. He further contended that petitioners are ready to furnish surety and ready to abide by the conditions that may be imposed by this Court. With this he prayed to allow the petition. 13
6. Per contra, learned High Court Government Pleader contended that the offence alleged against the petitioners is a heinous offence punishable with death or imprisonment for life. The petitioners are involved in larger conspiracy and they have assisted the convicted prisoner in got committing the murder of deceased Irfan Syed. The accused No.5 facilitated accused No.6 who is in prison to eliminate the deceased. The accused No.12 who is resident of Mysore has facilitated the other accused by sim cards and he is a friend of accused No.13 and accused No.13 is the relative of accused No.6. The accused No.12 transferred the money to the relative of accused No.6 and he forwarded the same to accused No.6. The call detail records of these accused connect them to the larger conspiracy with accused No.6 to
10. The charge sheet materials prima facie make out the case against the petitioners for the offences 14 alleged. If the petitioners are released on bail, they will repeat the similar offences and tamper prosecution witnesses and hamper further investigation and flee from justice. With this, he prayed to reject the bail petitions.
7. 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.
8. It is found that voluminous charge sheet is filed by the Investigating Officer. As per the charge sheet, the accused No.1 to 4, 5 and 12 have conspired with accused No.6 and forwarded him weapons and assisted the sharp shooters to kill the deceased Irfan Syed. As per the charge sheet even though the presence of the accused Nos.1 and 2 is stated on the spot and there is no overt act alleged against them 15 except that they were on motorcycle and after firing by accused Nos.7 to 10, they took them on their motorcycle and went away from the spot. The accused No.12 helped accused No.13 in getting two sim cards and they were handed over the sims to accused No.6 by accused No.13 which were used in the commission of offence and subsequently, they were destroyed. It is stated that the mobile call details show the conversation between accused No.1 and accused No.6 and between accused No.5 and accused No.6 and between accused No.1 and 11. Admittedly, there is no recovery at the instance of accused Nos.5 and 12. The Investigating officer has recovered revolver and bullets at the instance of accused Nos.3 and 4 from their agricultural land. The investigation is over and bulky charge sheet has been filed consisting of 158 witnesses. Therefore, the presence of the petitioner is not required for any 16 custodial interrogation. There are no criminal antecedents of the petitioner accused No.1 to 4, 5 and
12. Learned counsel for the petitioners submits that the petitioners/accused Nos.1 to 5 and 12 are ready to furnish surety and ready to abide by the conditions imposed by this Court and are ready to co-operate with the Investigating Officer in further investigation. The main objection of the prosecution is that if the petitioners are granted with bail, they will threaten complainant and tamper prosecution witnesses, the said objection may be set right by imposing some stringent conditions.
9. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to terms and conditions. Hence, I proceed to pass the following:
17
ORDER Crl.P.No.100450/2021, Crl.P.No.100452/2021 and Crl.P.No.100743/2021 filed under Section 439 of Cr.P.C. are allowed. Consequently, the petitioners/accused Nos.1 to 5 and 12 shall be released on bail in Crime No.90/2020 of Old Hubballi Police Station subject to the following conditions: i) The petitioners/accused Nos.1 to 5 and 12
shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) each with one surety for the like sum to the satisfaction of the jurisdictional Court. ii) The petitioners/accused Nos.1 to 5 and 12
shall not indulge in tampering the prosecution witnesses.18
iii) The petitioners/accused Nos.1 to 5 and 12 shall co-operate with Investigating Agency in further investigation.
iv) The petitioners/accused Nos.1 to 5 shall mark their attendance in Old Hubballi Police Station on every Sunday between 10 am to 2 pm till disposal of the case registered against them.
v) The petitioner/accused No.12 shall mark his attendance before Narasimharaj Police Station, Mysore on every Sunday between 10 a.m. to 2 p.m. till disposal of the case registered against him.
Sd/-
JUDGE HMB