Karnataka High Court
Pradeep C S vs The State Of Karnataka on 20 February, 2019
Equivalent citations: AIRONLINE 2019 KAR 1366
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.8518/2018
c/w
CRIMINAL PETITION NO.8519/2018,
CRIMINAL PETITION NO.8531/2018,
CRIMINAL PETITION NO.8602/2018.
IN CRL.P. NO.8518/2018:
BETWEEN :
Pradeep C.S.
S/o Shridhar
Aged about 28 years
R/at: Chikka Angala
Yemmedoddi Road, Kadur Taluk,
Chikkamangaluru-577 548.
... Petitioner
(By Sri B. Lethif, Advocate)
AND :
The State of Karnataka
by Doddapete Police Station
Shivamogga District
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
... Respondent
(By Smt. B.G. Namitha Mahesh, HCGP)
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This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.410/2018 of Doddapete Police Station, Shivamogga
District, for the offences punishable under Sections 143,
147, 384, 511, 307, 507, 120-B, 114 109 r/w Section
149 of Indian Penal Code and Sections 25 and 27 of
Indian Arms Act, and Section 3 of KCOCA Act, 2000.
IN CRL.P. NO.8519/2018:
BETWEEN :
Suhail Ahmed
S/o Sibgatulla
Aged about 24 years
R/at: N.R. Puram Road
Kanchinakatte Village
Boregul, Shivamogga Taluk
Shivamogga District-577 202.
... Petitioner
(By Sri B. Lethif, Advocate)
AND :
The State of Karnataka
by Doddapete Police Station
Shivamogga District
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
... Respondent
(By Smt. B.G. Namitha Mahesh, HCGP)
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This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.410/2018 of Doddapete Police Station, Shivamogga
District, for the offences punishable under Sections 143,
147, 384, 511, 307, 507, 120-B, 114 109 r/w Section
149 of Indian Penal Code and Sections 25 and 27 of
Indian Arms Act, and Section 3 of KCOCA Act, 2000.
IN CRL.P. NO.8531/2018:
BETWEEN :
Masood Khan @ Gidda Masood
S/o Vazir Khan
Aged about 21 years
Working as Mobile Repairer
Residing at 7th Cross, Tippunagar
Shivamogga.
... Petitioner
(By Sri Y.S. Shiva Prasad, Advocate)
AND :
State of Karnataka
by Doddapete P.S (Now transferred to Bengaluru)
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
... Respondent
(By Smt. B.G. Namitha Mahesh, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.410/2018 of Doddapete Police Station, Shivamogga
District, for the offences punishable under Sections 143,
147, 384, 511, 307, 120-B, 114 109 r/w Section 149 of
Indian Penal Code and Sections 25 and 27 of Indian Arms
Act, and Section 3 of KCOCA Act, 2000.
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IN CRL.P. NO.8602/2018:
BETWEEN :
Mr. Rafiq Ahamed Khan
S/o Rayees Ahamed Khan
Aged about 22 years
Permanent Resident of 7th Cross,
(Left Side Road) Tippunagar
Shivamogga.
Shivamogga District-577 201
... Petitioner
(By Sri Vijay Kumar K., Advocate)
AND :
State of Karnataka
by Doddapete Police Station
Shivamogga
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
... Respondent
(By Smt. B.G. Namitha Mahesh, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.410/2018 of Doddapete Police Station, Shivamogga,
for the offences punishable under Sections 307, 384, 507
and 511 r/w 34 of Indian Penal Code r/w Sections 25 and
27 of Indian Arms Act r/w Section 3 of Karnataka Control
of Organized Crimes Act.
These Criminal Petitions having been heard and
reserved on 11.02.2019 coming on for pronouncement of
order this day, the Court made the following:-
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ORDER
Criminal Petition Nos.8518/2018, 8519/2018, 8531/2018 and 8602/2018 are filed by accused Nos.8, 5, 7 and 6 respectively under Section 439 of Cr.P.C. to release them on bail in Crime No.410/2018 of Doddapete Police Station, Shivamogga, for the offences punishable under Sections 143, 147, 384, 511, 307, 507, 120B, 114, 109 r/w. Section 149 of IPC and Sections 25 and 27 of Indian Arms Act so also Section 3 of the Karnataka Control of Organized Crimes Act, 2000.
2. I have heard Sri Shivaprasad Y.S., Sri Lethif B., Vijaya Kumar K, learned counsel appearing on behalf of the petitioners-accused and Smt.Namitha Mahesh B.G., learned HCGP for the respondent-State.
3. Before going to consider the submissions made by the learned counsel appearing for the parties, the entire case of the prosecution in nutshell is that one -6- Khalim Pasha filed a complaint on 4.6.2018 alleging that he is doing real estate business. He received a mobile call from mobile phone number 8747069459. The caller introduced himself as Jabbu from Tumkur and informed that some persons from Shivamogga have given supari to kill the complainant and they have also given the photo and his mobile number. He further informed that his boys are staying at Bhadravathi and they will come to his house at about 10.00 a.m. He also demanded an amount of Rs.20 lakhs, for which the complainant told that he is ready to pay the amount. Thereafter, the complainant did not receive any calls and as such he kept quiet. It is further case of the prosecution that one month after receipt of the said call, again he received a call for demand of money and thereafter the phone call was disconnected. Three days thereafter, again complainant received a call and the caller started asking whereabouts of the complainant and further told him to come near Gopalapuradal Road. It is further case of the -7- prosecution that on the next day, again he received a call and the said person abused and threatened the complainant with dire consequences and thereafter disconnected the phone call. It is further case of the prosecution that after four days, at about 7.30 p.m. complainant's friend Abdul Rub's car was parked in front of his house. At that time, some unknown persons came and damaged the glass of the said car and in that context, a complaint has been filed before Doddapete Police. It is further case of the prosecution, that on 3.6.2018, at about 9.40 p.m. the complainant received a phone call to his number 9900601406 from mobile number 7624899969 and the caller introduced himself as Mujju and told the complainant to come near Ayodhya Hotel to which complainant told that he is in Bengaluru and at that time, phone call was disconnected. After 15 minutes, again he received the phone call and the said person told him that his guys are following him and they are also watching his movements and they are going to -8- enter his house and thereafter the phone call was disconnected. It is further case of the prosecution that at about 12.00 O'clock in the midnight the complainant slept and at about 4.00 a.m. he woke up for having food as it was a Ramzan month. At about 4.40 a.m. from the same mobile number i.e., 7624899969, the complainant received a call and the said person asked his whereabouts to which the complainant replied that he has to go to Mosque for namaz to which the said person told him that he will not go to Mosque and he is going to none of the places and by hearing the same, the complainant peeped through window whether anybody was there, but he noticed that nobody was there outside the house. Thereafter, he opened the door. Immediately, two persons came on a motorbike covering the face with towel and fired towards the complainant. The said bullet hit to the gate and immediately complainant closed the gate and rushed inside the house. Thereafter he received a call that today he was escaped -9- and if money is not paid, next time they would finish him. On the basis of the said complaint, a case has been registered in the above said crime.
4. During the course of investigation, police apprehended accused Nos.1 to 4 on 17.6.2018 and seized vehicle and mobile phones. They also recorded the voluntary statements of the said accused and at that time, accused disclosed the name of accused No.10 Khurram Pasha and further disclosed that they have conspired along with him to commit the alleged offence. Subsequently, on 19.6.2018 accused Nos.5 to 7 were apprehended and from them mobile phones have been seized. On 20.6.2018 one country pistol, air gun, knife, hand gloves used for commission of offence were seized from them. So also, a bajaj pulsur motorcycle was seized from accused No.1. It is further case of the prosecution that on 27.6.2018 police apprehended accused No.9, who showed the place where he has
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purchased country pistol and the place of conspiracy. After considering the said fact, with necessary permission, a sanction was obtained to invoke the provisions of the Karnataka Control of Organized Crimes Act, 2000 ('KCOCA' for short).
5. It is the submission of the learned counsel Sri Shivaprasad Y.S., for accused No.7 that the name of accused No.7 was not found in the complaint and FIR. There is an inordinate delay of 90 days in filing the complaint. When the first call was made, there was no demand for extraction of money. Even there are no specific overt acts alleged against accused No.7. When there is no extraction of money, provisions of Section 384 of IPC are not attracted. He further submitted that neither accused No.7 has triggered the pistol nor any other overt acts so as to attract the provisions of Section 307 of IPC are alleged against him. Though there is an allegation that there was conspiracy, no records have
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been produced to prove such conspiracy. The only overt acts which have been alleged as against accused No.7 are that he has provided a motorbike to accused No.1 and there was recovery of one mobile phone. All these materials do not bring compatibility of accused No.7. It is only accused Nos.1 and 2 who have been involved in the said offence. He further submitted that the complaint which has been filed is a computerized complaint. The complainant being a real estate businessman, he has been involved in many cases and he is having so many enemies. Accused No.7 has not paid any supari to other accused persons. He further submitted that in order to attract the provisions of the KCOCA, the prosecution has to satisfy the relevant two preconditions, first one is that at least there should be two charge sheets filed against the member of an organized crime syndicate within 10 years and the second one is the competent Court has taken cognizance of the said offence. By referring to Section 2(d)& 2(e) of
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the KCOCA, he submitted that in order to bring the offence under the provisions of KCOCA, there should be continuous unlawful activities which are prohibited in law and such offence is punishable with imprisonment for three years or more. But in the instant case, no such material has been produced to connect the accused persons to the alleged crime. Entire material does not connect the accused persons to KCOCA. In order to substantiate the said contention, he relied upon the decision in the case of Mahipal Singh Vs. Central Bureau of Investigation & another reported in (2014)11 SCC 282. It is his further submission that if an accused has been granted bail for other offences and if they are bailable, then under such circumstances, Section 22(5) of the KCOCA does not come in the way for granting the bail to the accused. In order to substantiate the said contention, he relied upon the decision in the case of Rajesh Nayak & others Vs. The State by Vitla Police Bantwal Taluk, in Criminal Appeal No.20/2018
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arising out of SLP.(Crl.)No.9140/2017, disposed of on 5.1.2018. He further submitted that delay in trial is one of the factors for consideration of granting the bail. In order to substantiate the said contention, he relied upon the decision in the case of State of Kerala Vs. Raneef, reported in (2011)1 SCC 784. He further submitted that the provisions of the KCOCA could not be invoked only on the basis of previous charge sheet. In order to substantiate the said aspect, he relied upon the decision in the case of State of Maharashtra Vs. Shiva @ Shivaji Ramaji Sonawane & others, reported in (2015) 14 SCC 272. He further submitted that the object of bail is to secure the appearance of the accused at the time of trial. Under such circumstances, if the Court is satisfied that the presence of the accused can be secured, then he can be released on bail. In order to substantiate his arguments, he relied upon the decision in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in 2012(1) SCC (Cri) 26. He
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further submitted that the detention of the accused will amount to pre-conviction as far as possible that the accused must be released on bail to see that he should not abscond and hamper the trial in any manner. In order to substantiate the said contention, he relied upon the decision in the case of Dataram Singh Vs. State of Uttar Pradesh & another in Criminal Appeal No.227/2018 arising out of SLP.(Crl.)No.151/2018, disposed of on 6.2.2018. On these grounds, he prayed to allow his petition and to grant bail to accused No.7.
6. Sri Lethif B., learned counsel for accused Nos.5 and 8 vehemently argued and submitted that accused No.5 was arrested on 19.6.2018 and on the basis of his voluntary statement, it is found that accused No.5 has given a bike to accused No.1. Except the said act, no allegations are alleged as against accused No.5. He further submitted that accused No.8 was apprehended on 21.6.2018 and voluntary statement has been recorded.
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The only allegation which has been made as against accused No.8 is that he introduced accused No.13 to purchase the gun on 5.1.2018. He further submitted that the entire charge sheet material discloses that accused Nos.5 and 8 have conspired with other accused persons by providing motorbike and introducing accused No.13. There is no other material as against these accused. He also supported the arguments of the learned counsel for accused No.7.
7. Sri Vijaya Kumar K., learned counsel for accused No.6 submitted that accused No.6 is a student. He is nothing to do with the alleged crime. The only recovery made as against him is a mobile phone and no other cases are pending as against him. He also supported the arguments of the learned counsel appearing for accused Nos.7, 5 and 8. and prays to allow the petitions and to release the petitioners on bail.
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8. Per contra, Smt.Namitha Mahesh B.G., learned HCGP for the respondent-State vehemently argued and submitted that there is ample material during the course of investigation that the petitioners are the members of the organized crime syndicate and they were trying to extract money from businessmen. She further submitted that with the sanction of the competent authority, the Investigating Officer has invoked the provisions of KCOCA against the accused persons and the said aspect has not been challenged by any of the accused. She further submitted that the activities of the petitioners clearly go to show that they have conspired with the main accused and they have actively participated in the alleged crime. She further submitted that the accused- petitioners are abettors. As per Section 2(1)(a)(i) of the KCOCA, if any 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, then he will be considered
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to be a member of the organized crime and he will be an abettor. By referring to the said Section, she further submitted that accused No.5 has handed over the motorbike to facilitate accused No.1 to flew away from the place. Accused No.8 facilitated to provide the gun and he introduced accused No.13 to get the gun and even the mobile which has been used for the purpose of said conversation between them has also been seized from the possession of accused No.8. She further submitted that accused No.7 is also a person who has assisted accused No.1 by providing another motorbike and the said bike has also been recovered from the possession of accused No.7. Accused No.6 is the person who was watching the movements of the complainant and he has also accompanied the accused persons in order to facilitate the accused to do crime and to escape from the said place. All these materials produced by the prosecution clearly go to show that there is involvement of the petitioners in the alleged crime and as such they
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are not entitled to be released on bail. She further submitted that after complicity of the petitioners in the activities of other accused persons as part of the organized crime syndicate if it is proved, then the sanction is inconsequential. In order to substantiate the said contention, she relied upon the decision in the case of Vinod G. Asrani Vs. State of Maharashtra, reported in 2007(3) SCC 633. She further submitted that while granting bail to the petitioners, the Court has to keep in mind the provisions of Section 22(4)(b) of the KCOCA and it is expected to exercise its discretion in a judicious manner and not as a matter of course and the Court has to indicate in its order the reasons for prima facie conclude why bail was being granted or refused. She further submitted that the Court is duty bound to see if there exists a reasonable ground for believing that the accused is guilt or not guilty, then only it can exercise its power to release the accused on bail. In order to substantiate the said contention, she relied upon the
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decision in the case of Govind Sakharam Ubhe vs. The State of Maharashtra, in Criminal Appeal No.18/2009 disposed of on 11.6.2009. She further submitted that two charge sheets have been filed within 10 years as contemplated under law as against accused Nos.1 and 2. She further submitted that if the material creates a strong and grave suspicion leading to presume that the accused is a member of an organized crime syndicate and has been involved in continuing unlawful assemblies, then under such circumstances, prima facie there is said to be a material as against the accused and as such he is not entitled to be released on bail. In case of crime syndicate, they operate either singly or jointly, they also operate in different modules. Under such circumstances, the entire evidence and the material have to be seen to link the person with the organized crime syndicate. In that light, if the entire material which has been produced during the course of arguments, it clearly goes to show that the accused-petitioners are the
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members of the organized syndicate and as such they are not entitled to be released on bail. She further submitted that if the petitioners herein are enlarged on bail, again they may indulge in similar type of criminal activities. On these grounds, she prayed to dismiss the petitions.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the accused-petitioners and the learned HCGP for the respondent-State and have also perused the records.
10. The first submission of the learned counsel for the petitioners-accused is that the provisions of KCOCA are not applicable to the facts and circumstances of the case on hand and as such the present petitions may be considered with reference to the bail provisions in an ordinary course. On going through the records made available during the course of arguments, it is not in dispute that as against accused Nos.1 to 3, provisions of
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KCOCA have been applied and even the sanction has also been granted in this behalf by the concerned authority by the order dated 6.7.2018. Under the said facts and circumstances of the case, the provisions of KCOCA are applicable to the remaining accused. It is also not in dispute that the application of the provisions of KCOCA has not been challenged no where by any of the accused persons. Under such circumstances, this Court can hold that the provisions of KCOCA are applicable to all the accused persons being the members of an organized crime syndicate. In this behalf, the contention taken up by the learned counsel for the petitioners cannot be accepted.
11. I have carefully and cautiously gone through the decisions quoted by the learned counsel for the accused-petitioners and the catena of decisions of the Hon'ble Apex Court on the point. On close scrutiny of the said decisions of the Hon'ble Apex Court, it emerges that
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the provisions of KCOCA are departure from the normal penal laws of the country and unless the acts committed by the accused squarely fall within the provisions of the said special Statute, he should not be roped in by stretching the language of such enactment. But at the same time, if otherwise the material placed attract the provisions of the KCOCA, no lenient view should be taken. If the lenient view is taken, the purpose of the very special enactment and its objects fail. With that background, now let me consider the material placed on record whether the petitioners herein are entitled to be released on bail.
12. It is the submission of the learned HCGP that as against accused No.1, three cases have been registered. In respect of accused Nos.2 and 3 respectively, two cases have been registered and thereafter the provisions of KCOCA have also been invoked. As could be seen from the case of the prosecution, in the first instance a call
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was received from mobile number 8747069459 stating that some supari has been given to kill the complainant and his photo and phone number have also been given and his persons were waiting. At that time, the said person has demanded Rs.20,00,000/- as ransom. Again three days thereafter, complainant received a call and the person called asked whereabouts of the complainant and he also asked the complainant to come near Gopalapuradal Road on the next day. On the next day the complainant was called over phone and abused and threatened with dire consequences. It is further case of the prosecution that on 17.4.2018 when his friend Abdul Rab got parked his car in front of house of the complainant, the said car was also damaged. Again on 3.6.2018 at about 9.40 p.m., the complainant received a call from mobile number 7624899969 and asked the complainant to come near Ayodhya Hotel and immediately after 15 minutes he again called and told that his men are following him and watching his
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movements. On the next day at about 4.40 a.m., the complainant got a call from the same mobile number and the said person asked whereabouts and when he opened the door two persons who have covered their faces with towel fired towards the complainant. But the complainant managed to escape. Even the charge sheet material discloses the fact that accused No.5 has provided motorbike for commission of the offence and accused No.6 was watching and accompanied with the accused and he also facilitated to escape from the place of incident. Accused No.7 has also provided a mobile phone and motorbike to accused No.1 and the same have been recovered from the possession of accused No.1. In so far as accused No.8 is concerned, he introduced accused No.13 to accused Nos.1 and 2 and accused No.13 sold airgun to accused Nos.1 and 2 and the said gun has also been recovered at the instance of accused No.1. On going through all these materials and the movement of accused Nos.1 to 4 and the present
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petitioners it would indicate that the petitioners herein are the members of an organized crime syndicate and they were associated with the main accused and they have facilitated the organized crime by aiding and assisting in some of the activities relating to the alleged incident. It is not necessary that in such crimes the members of the organized crime syndicate should meet and discuss and thereafter do the act, but they will either operate singly or jointly or as a single member undertakes to do the act of the organized crime syndicate. Under such circumstances, the provisions of KCOCA are attracted and the petitioners were also liable in this behalf.
13. During the course of arguments, the learned counsel for the petitioners contended that at the time of obtaining sanction, to prosecute the accused under the KCOCA, name of the petitioners were not found and as such they were not the members of the organized crime
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syndicate and therefore they are not liable and as per the general law they have to be released on bail. In order to substantiate the said contention, they relied upon the decision in the case of State of Maharashtra Vs. Bharat Shanti Lal Shah & others, reported in (2008)13 SCC 5, wherein at paragraphs-62 and 64, it has been observed as under:-
"62. Having recorded our finding in the aforesaid manner, we now proceed to decide the issue as to whether a person accused of an offence under MCOCA should be denied bail if on the date of the offence he is on bail for an offence under MCOCA or any other Act. Section 21(5) of MCOCA reads as under:
"21(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."
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63. xxx xxx xxx xxx xxx
64. We consider that a person who is on bail after being arrested for violation of law unconnected with MCOCA, should not be denied his right to seek bail if he is arrested under MCOCA, for it cannot be said that he is a habitual offender. The provision of denying his right to seek bail, if he was arrested earlier and was on bail for commission of an offence under any other Act, suffers from the vice of unreasonable classification by placing in the same class, offences which may have nothing in common with those under MCOCA, for the purpose of denying consideration of bail. The aforesaid expression and restriction on the right of seeking bail is not even in consonance with the object sought to be achieved by the Act and, therefore, on the face of the provisions this is an excessive restriction."
14. I have carefully and cautiously gone through the said decision quoted by the learned counsel for the
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petitioners. The similar issue came up before this Court in the case of Sri Mohan Nayak N Vs. The State of Karnataka, in Criminal Petition No.8325/2018, disposed of on 11.2.2019. This Court by relying upon of the decision of this Court in the case of Raju & others Vs. State of Karnataka by Yelahanka Police Station, Bengaluru, in Criminal Petition No.4795/2017, disposed of on 3.8.2017 and also the decisions of the Hon'ble Apex Court in the case of Vinod G. Asrani Vs. State of Maharashtra (cited supra) and in the case of Pratapbhai Hamirbhai Solanki Vs. State of Gujarat & another, reported in (2013)1 SCC 613 has come to the conclusion that if the factual matrix of the case is tested with the touch stone of the principle laid down by the Hon'ble Apex Court, prima facie, it satisfies the said test and it can safely be held that the petitioners are the members of the conspiracy and the provisions of KCOCA are applicable. In the instant case also, if the entire material is perused, accused No.5 has provided
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motorbike to accused No.1; accused No.6 was watching and accompanied accused No.1 and also facilitated him to escape after committing the cognizable offence; accused No.7 has also provided another motorbike to accused No.1 and the said bike was also recovered from his possession and it is accused No.8 who introduced accused No.13 and facilitated to purchase the gun and has also provided the mobile phone. All these activities clearly go to show that the petitioners were the members of the organized crime syndicate. In that light, the contention raised is not sustainable in law and the same is liable to be rejected.
15. It is further submitted by the learned counsel for the petitioners that the trial may take some more time and delay is one of the factors which has to be considered while granting the bail. They relied upon the decision in the case of State of Kerala Vs. Raneef (cited supra) and submitted that the object of bail is to
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secure the appearance of the accused person at the time of trial and as such, a conditional bail may be granted. In order to substantiate the said fact, they relied upon the decision in the case of Sanjay Chandra Vs. Central Bureau of Investigation (cited supra). I have carefully and cautiously gone through the said decisions. But, the principles laid down in the said decisions are not applicable to the facts of the present case since there is material to show that the petitioners herein have been involved in a serious offence which is not only punishable with IPC but also under the provisions of KCOCA. It is well settled principle of law that at the time of considering the bail application, the Court must consider the gravity of offence and the social impact and public interest. In that light, if the petitioners are enlarged on bail, it is going to send a wrong signal in the society and they may again indulge in similar type of activities which is going to create a threat in the society as a whole. In
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that light, the contention taken up by the learned counsel appearing for the petitioners is not acceptable.
16. For myriad reasons discussed above, this Court is of the considered view that almost all the contentions raised by the learned counsel appearing on behalf of the petitioners are not acceptable so as to release the petitioners on bail and as such these petitions are liable to be dismissed.
Accordingly, petitions stand dismissed.
Sd/-
JUDGE *ck/-