Karnataka High Court
Sri Vinayak Alias Vinaykgouda ... vs The State Of Karnataka on 23 September, 2023
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NC: 2023:KHC-D:11180
CRL.A No. 100142 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100142 OF 2023 (U/S 14 A(2) of SC
and ST ACT-)
BETWEEN:
SRI. VINAYAK @ VINAYKGOUDA MARIGOUDA
S/O MUDIGOUDAR,
AGED ABOUT 33 YEARS, OCC BUSINESS,
R/AT 1ST CROSS, VIVEKANAND NAGAR,
GOKAK BELAGAVI 591307.
...APPELLANT
(BY SRI. H.S.CHANDRAMOULI, SENIOR COUNSEL FOR
SRI. M.L.VANTI, ADVOCATES)
AND
1. THE STATE OF KARNATAKA
CHANDRASHEKAR BY THE POLICE OF GOKAK TOWN
LAXMAN
KATTIMANI PS KARNATAKA 591307,
REP BY THE STATE PUBLIC PROPSEUCUTOR
Digitally signed by HIGH COURT OF KARNATAKA DHARWAD BENCH
CHANDRASHEKAR
LAXMAN DHARWAD 580 011.
KATTIMANI
Date: 2023.09.27
14:50:32 +0530
2. DEEPAK S/O SHRIKANT INGALAGI
AGED ABOUT 24 YEARS, OCC. BUSINESS,
R/AT. ADIJAMBAV NAGAR,
GOKAK BELAGAVI-591307.
.....RESPONDENTS
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NC: 2023:KHC-D:11180
CRL.A No. 100142 of 2023
(BY SRI. VIJAYKUMAR MAJAGE SPP2 AND SMT.GIRIJA
HIREMATH, HCGP FOR R1; SRI. AVINASH ANGADI, ADVOCATE
FOR R2)
THIS CRIMINAL APPEAL IS FILED U/SEC. 14A(2) OF
SC/ST ACT, SEEKING TO SET ASIDE THE IMPUGNED ORDER
DATED 14.10.2022 PASSED BY THE PRL. SESSIONS JUDGE,
KCOCA SPL. JUDGE, AT BELAGAVI, AND ENLARGE THE
APPELLANT/ACCUSED NO.13 BE RELEASED ON BAIL IN
SPECIAL CASE NO. 202/2020 REGISTERED BY THE
RESPONDENT GOKAKA TOWN POLICE IN CRIME NO. 72/2020
FOR THE OFFENCE P/U/SEC. 120B, 109, 201 R/W 34, 35, 37
AND 149 OF IPC AND SEC. 3 (2), 3(4), 3(5) AND 4 OF KCOCA
2000.
THIS APPEAL, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Appellant who is arraigned as accused No.13 has filed this appeal challenging the order dated 14.10.2022 by which KCOCA Spl. Judge, Belagavi has rejected the bail application filed by him u/sec.439 Cr.P.C. He has sought for setting aside the said order and to grant him bail in Crime No.72/2020 of Gokak Town Police Station for the offences punishable u/secs.120-B, 109, 201 r/w Sections 34, 35, 37 and 149 IPC and Sections 3(2), 3(4), 3(5) and 4 of Karnataka Control of Organized Crimes Act, 2000 (for short, 'KCOCA 2000').
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023
2. In support of his appeal, the appellant has contended that he is innocent of the offences alleged. He has been falsely implicated for extraneous reasons. Even if the case of the prosecution is accepted in its entirety, there are no reasonable grounds to believe that appellant has committed the offences alleged. The allegations made against the appellant are patently absurd and inherently improbable, vague, concocted, lack material evidence and suffers from severe infirmities.
2.1. To attract the provisions of Section 2(d) of KCOCA 2000, the prosecution has alleged that appellant is involved in Crime No.126/2020 for the offences punishable u/secs.143, 147, 384, 504 and 506 r/w/s 149 IPC. However in the absence of two or more charge sheets, it would not satisfy the requirement of continuing unlawful activities as defined u/sec. 2(b) of KCOCA 2000. No charge sheet is filed in respect of the previous crime number allegedly involved by the appellant. Column No.12(xv) of -4- NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 the charge sheet indicate that appellant has no previous convictions.
2.2. The name of appellant is not found in the member list of Tiger Gang. The appellant was not present at the spot when the alleged incident took place. The allegations against appellant is that accused No.1 contacted him from the jail and directed him to destroy the cheques/bonds/notes etc., which is a contested/disputed fact which can only be established during the course of trial and at this stage, there is no prima facie case made out against the appellant. There are no eyewitnesses to establish the allegations with regard to destruction of evidence by the appellant. The recovery of documents from the resident of appellant indicates that he is licenced money lender. The statements of the witnesses are to the effect that appellant is involved in collecting hafta which is to be proved at trial. As per the decision of the Hon'ble Supreme Court in Kavitha Lankesh, action could be taken against member of the organised crime -5- NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 syndicate only when there are materials to connect his nexus with members of such organised syndicate.
2.3. The alleged offences attributed to the appellant under the provisions of IPC are bailable in nature. KCOCA 2000 is invoked only to detain the appellant in custody. The mere withdrawal of Criminal Appeal Nos.100152/2021 and 100198/2021 would not draw an inference on the conduct of the appellant. Under the changed circumstance, the appellant is entitled to move successive bail applications. In the light of accused Nos.11 and 14 being granted bail, there is changed circumstance. Mere pendency of SLP challenging the bail granted to accused Nos.11 and 14 would not come in the way of appellant seeking bail as there is no stay. Appellant was arrested on 07.09.2020 and since then he is in custody.
2.4. Appellant is ready and willing to abide by any conditions that may be imposed and offer substantial surety to the satisfaction of the Court and prays to allow the appeal.
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3. In support of his arguments learned Senior counsel representing appellant has relied upon the following decisions:
1) Sanwal Das Gupta Vs. State of U.P. and others1 (Sanwal Das Gupta)
2) Nirmala Second Bail Vs. State of U.P.2 (Nirmala Second Bail)
3) State of Karnataka Vs. Jagadish and Another 3 (State of Karnataka) 4
4) Kavitha Lankesh Vs. State of Karnataka (Kavitha Lankesh)
4. After due service of notice, respondent No.2 who is defacto complainant has appeared through counsel and resisted the appeal.
5. For respondent No.1 State, learned High Court Government Pleader filed objections stating that based on the complaint dated 06.05.2020 filed by the de facto 1 1985 SCC Online All 310 2 2022 SCC Online All 239 3 Crl.A.Nos.7965-7966/2021 4 (2022) SCC 753 -7- NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 complainant, initially case was registered against accused Nos.1 to 3 and some 4-5 unknown persons for the offences punishable under Sections 143, 147, 148, 307, 504, 506 r/w/s 149 IPC and Sec. 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'SC and ST (POA) Act'). During the course of investigation, remaining persons were arraigned as accused. It is the case of the prosecution that deceased Siddappa Kanamaddi was President of State Youth Dalit Sangharsh Samiti. There was rivalry between accused No.1-Gangadhar Shinde and his associates who are member of Tiger gang with deceased Siddappa Kanamaddi in connection with the murder of one Rohit Patil. Due to the said rivalry, a rift arose between persons belonging to scheduled caste and maratha community and many cases were registered against each other.
5.1. On 06.05.2020 at 8.00 p.m., complainant along with his friends and deceased Siddappa Kanamadi, Kiran Shankar Kadatti, Raju Huchannavar, Prashant Patrot was -8- NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 sitting at Hanuman Temple katta, Adi Jambhav nagar, Gokak. Deceased Siddappa Kanamadi was speaking over cell phone. At that time, accused No.3-Gangadhar Sindhe, accused No.4-Vinayak Hadaginal, accused No.5-Vithal Pawar along with 4-5 other persons came in a two-wheeler and auto-rikshaw. They assaulted deceased with sword and injured him severely. They abused him in filthy language referring to his caste. When de facto complainant and others tried to save him, they were threatened with dare consequences. Immediately, deceased was shifted to Umarani Hospital and from there to KLE Hospital, Belagavi. His dying declaration was recorded wherein he has implicated the persons who assaulted him and also rivalry members of Tiger Gang. On 07.05.2023, Siddappa Kanamaddi died and Section 302 IPC came to be included. 5.2. During the course of investigation as per the request of the Investigating Officer vide order dated 17.07.2020, the Inspector General of Police, North Range, Belagavi has accorded permission as provided under -9- NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 Section 24(1)(a) of KCOCA 2000 to the Investigating Officer to invoke provisions of Sections 3 and 4 of KCOCA 2000.
5.3. After completing investigation, the investigation officer has filed charge sheet for the offences punishable under Sections 143, 144, 147, 148, 150, 341, 120B, 302, 109, 115, 212, 201, 504 and 506 r/w/s 34, 35, 37, 149 of IPC, Sections 3 and 4 of KCOCA 2000, Section 3(1)(s), Section 3(2)(v), Section 3(2)(va), 8(1)A of SC and ST (POA) Act and Sections 25(1)A and 25 1(b) of Arms Act against accused Nos.1 to 17, 19 and 21 on 31.10.2020. Further, the investigating officer found some more material and the additional charge sheet under Section 173(8) have been filed subsequently on 12.03.2021 and 10.12.2021.
5.4. The appellant and other accused are members of Tiger Gang. They have committed heinous organised offences and they are mainly assisting, aiding and facilitating the accused, who have committed the murder
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 of Siddappa Kanamadi to escape from the legal clutches. As of now, the Investigating Officer has arrested 19 accused and 2 accused are absconding. The statements of witnesses have been recorded under Section 164(5) Cr.P.C before the jurisdictional Magistrate. The Investigating Officer has also recorded the statement of witnesses, who are 250 in number. The accused have also given their confessional statement before the Superintendent of Police, Gadag which are admissible under Section 19 of KCOCA 2000.
5.5. The voluntary statement of appellant reveals that he is member of Tiger Gang and actively involved in committing the offences. So far as the present case is concerned, appellant, accused Nos.12 and 13 are in constant touch with accused No.1, who is in judicial custody at Central Prison, Belagavi. Accused No.1 secured SIM and instructed them over phone to arrange for money collected through hafta to get him bail. He has also instructed them to destroy documents with regard to
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 collection of hafta by the members of Tiger Gang. In turn, appellant has instructed other members of the Gang. These details are forthcoming in call detail records (CDR) of accused Nos.1, 12 and 13 (appellant). 5.6. The charge sheet reveals that appellant is signatory to several sale deeds and agreements pertaining to accused Nos.1 and 2. As members of the organised crime syndicate, the accused have engulfed properties of gullible public of Gokak town. They have created fear psychic in the minds of the general public by threatening them. They regularly collect hafta from the businessmen. During the course of their voluntary statement, accused Nos.1, 2, 7, 8, 12, 15, 16 and 17 have spoken to about their role and nexus with the Tiger Gang. During the search in the house of accused No.11, cash in a sum of Rs.30,58,460/- is recovered which is collected through hafta. Large amount of weapons namely piston, bullets and arms are seized. Charge sheet makes out a strong prima facie case.
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 5.7. Initially appellant along with co-accused applied for bail before the Special Court, Belagavi. It was rejected vide order dated 01.03.2021. Appellant and accused Nos.12 and 15 approached this Court in Criminal Appeal No.100152/2021. However they got it withdrawn as not pressed and accordingly the appeal was dismissed on 22.07.2021. Once again on 05.08.2021, appellant, accused Nos.12 and 15 filed successive bail application in Crl.A.No.100198/2021 and when it was posted before the same bench, the Hon'ble Court after knowing about the forum shopping by the appellant directed the Registry to place the matter before regular roster bench and recused from hearing the said matter. However, they got the petition dismissed by submitting that they are intending to file fresh bail petition before the Spl.Court. 5.8. Accordingly appellant approached the Spl.Court and sought bail on the ground of parity as accused Nos.11 and 14 were granted bail by this Court. However the said order is under challenge before the Hon'ble Supreme
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 Court. On 14.10.2022 the Spl.Court rejected the bail petition of accused Nos.12, 13 and 15. Observing the conduct of the appellant and other accused indulged in bench hunting, this Hon'ble Court came heavily on them and rejected the bail petition. Consequently appellant has not made out any new grounds to enlarge him on bail. 5.9. Criminal Appeal Nos.100093 & 100089/2021 filed by accused Nos.11 and 14 came to be allowed on 02.07.2021. Challenging the same, the State has approached the Hon'ble Supreme Court in SLP (Crl.) Nos.7965-7966/2021 and it is pending.
5.10. Accused No.16 filed bail application Crl.A.No.100129/2021 and vide order dated 30.08.2021, it is dismissed by this Court. Similarly the bail petition filed by accused No.17 in Crl.P.No.100040/2022 is dismissed vide order dated 04.01.2023 which is subsequent to granting of bail to accused Nos.11 and 14. Similarly, Crl.P.No.100682/2021 and W.P.No.103607/2021 filed by
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 accused Nos.6 and 19 respectively to quash the criminal proceedings against them are dismissed on 23.02.2022.
5.11. Initially charge sheet was filed against accused Nos.1 to 20 and proclamation is issued against accused Nos.18 to 20. Additional charge sheet is filed against accused No.121 who is the Jail Warder and who assisted accused No.1 by providing a SIM card to facilitate them to contact members of the Gang and give instructions to get the accused in custody released on bail, threaten the witnesses not to give statement and evidence and also to shift, destroy the documents evidencing the activities of the Gang members. Additional charge sheet is also filed against accused No.19 who surrendered on 16.09.2021. Accused Nos.18 and 20 are still absconding. In the event of granting bail, there is every possibility of appellant indulging in similar and other offences and also prevent the witnesses from giving evidence and thereby facilitate the accused who are involved in the main case to escape from the legal liabilities.
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 5.12. In fact, Crime No.72/2020 and 4 other cases are registered against members of crime syndicate for threatening the prosecution witnesses including the wife of deceased. The accused have amassed illegal wealth by collecting hafta from the businessmen and public. The Tiger Gang is in existence since 2007. Looking to the facts and circumstances of the case, appellant is not entitled for bail and prays to reject the appeal.
6. In support of the prosecution, learned High Court Government Pleader as well as learned counsel appearing for respondent No.2/de facto complainant has relied upon the following decisions:
1) Safeer Ahmed Vs. State of Karnataka 5 (Safeer Ahmed)
2) State of Maharastra Vs. Vishwanath Maranna Shetty 6 (State of Maharastra)
3) Kavitha Lankesh Vs. State of Karnataka and Others 7 (Kavitha Lankesh) 5 Crl.A.Nos.4653-4587/2016 6 (2012) 10 SCC 561 7 (2022) SCC 753
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7. Heard elaborate arguments of learned Senior counsel appearing for the appellant and learned High Court Government Pleader and learned counsel representing respondent No.2-de facto complainant and perused the record.
8. Though learned Senior counsel representing the appellant initially confined his arguments and submitted that in the light of Hon'ble Supreme Court granting bail to accused No.16, appellant is also entitled for bail on the ground of parity, after the learned HCGP and learned counsel for de facto complainant addressing arguments also on merits, he submitted arguments on merits and sought for allowing the appeal.
9. Thus, appellant/accused No.13 is seeking bail on the ground that he is not at all involved in the alleged murder of Siddappa Kanamadi and at the first instance his name is not reflected in the complaint. Later on he has been implicated by pressing into service the provisions of KCOCA 2000, by alleging that he is member of Tiger Gang
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 and in order to bail out the accused persons who are arrested and to provide them money and other support, he is involved and that he has given threat to the wife of deceased not to prosecute the complaint and in that regard also a case is registered against him.
10. The brief facts leading to the filing of complaint and consequent charge sheet are that on 06.05.2020, a complaint came to be filed by Deepak Shrikant Ingalagi alleging that deceased Siddappa Kanamaddi was State President of Dalit Sangharsha Samiti. There was a rift between him and accused No.3 Gangya @ Gangadhar Shindhe and his followers with regard to the murder of Rohit Patil and many cases were registered against followers of Maratha Samaj and Dalit Sangharsha Samiti. In this background, on 06.05.2020 at 8.00 p.m. near the Hanuman Temple of Aadijambavanagara, complainant, Kiran Kadatti, Raju Huchchanavar, Prashant Patrot were sitting on the platform of the temple and deceased Siddappa Kanamadi was standing and speaking over his
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 phone. At around 8.20 p.m. accused No.3 Gangya @ Gangadhar Shindhe, accused No.4-Vinayak Hadaginal came on a motorcycle, accused No.-5-Vitthal Pawar and 4- 5 others came in an auto rickshaw. Suddenly they started assaulting deceased Siddappa Kanamaddi with sword like object and abused him by referring to his caste. When complainant and others tried to save him, they were given threat to their life. After the assault, all of them left in the auto rickshaw. Immediately they shifted injured Siddappa Kanamadi to Umarani Hospital and after first aid he was taken to Belgaum for higher treatment.
11. Based on the complaint, case was registered in Crime No.72/2020 for the offences punishable under Sections 143, 147, 148, 307, 504, 506 r/w/s 149 IPC and Sections 3 (2) (v) of SC and ST (POA) Act and investigation was taken up.
12. During the course of investigation, it was realized that the accused persons are members of Tiger Gang-an organized crimes syndicate indulged in organized
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 crimes and continuing unlawful activities. Therefore, the entire investigation papers were placed before the Addl.Director General of Police, Belagavi Division and after perusal of the same and on being satisfied with the fact that the provisions of KCOCA 2000 are attracted, he has granted prior approval to proceed against accused Nos.1 to 20. As required under Section 24(1)(a) of KCOCA, 2000 to invoke the provisions of Sections 3 and 4 of KCOCA, 2000. After completing the investigation, charge sheet is filed against Accused persons (Nos.1 to 17, 19 and 21 for the offences punishable under Sections 143, 147, 148, 150, 341, 120B, 302, 109, 115, 212, 201, 504, 506 r/w/s 34, 35, 37, 149 IPC and Sections 3 and 4 of KCOCA 2000, Sections 3(1)(s), 3(2)(v), 3(2)(v,a), 8(1)A of SC and ST (POA) Act and Sec.25(1)A, 25(1)(b) of Arms Act). After further investigation, additional charge sheets are filed on 12.03.2021 and 10.12.2021.
13. At the outset, learned senior counsel representing appellant/accused No.13 submitted that in
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 order to attract the provisions of Section 3 of KCOCA, he must be guilty of continuing unlawful activity as defined under Section 2(1)(d) of KCOCA and for this in the preceding 10 years more than one charge sheet have been filed. However, as against the appellant/accused No.13, only one case is registered, that too subsequent to the present case and therefore, the provisions of KCOCA are not attracted to his case. However, as rightly pointed out by the learned HCGP and learned counsel for the respondent No.2/de facto complainant, this controversy is clarified by the Hon'ble Supreme Court in Kavitha Lankesh and held that requirement of more than two charge sheets having been filed for the specified offences before the Competent Court in the previous ten years applies only to the offence of organised crime punishable under Section 3(1) and not to offences specified in Sections 3(2) to (5) and that too such charge sheets need to be only qua the organised crime syndicate and not qua individual member(s) thereof. For later category of offence in Sections 3(2) to (5), it is not essential that more than
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 two charge sheets have been filed against the persons so named, before a competent Court within the proceeding period of 10 years and that Court has taken cognizance of such offences. In this regard the Hon'ble Supreme Court further held that:
"If the role of the offender is merely that of a facilitator or of an abettor as referred to in Ss. 3(2) to (5), the requirement of named person being involved in more than two charge-sheets registered against him in the past is not relevant -Regardless of that, he can be proceeded under the 2000 Act, if the material collected by the investigating agency reveals that he had nexus with the accused who is a member of organised crime syndicate or such nexus is related to the offence in the nature of organised crime- Thus, he need not be a person who had direct role in the commission of an organised crime as such".
14. In the light of the decision in Kavitha Lankesh, the fact that only one criminal case is registered against the appellant would not come in the way of applying provisions of Sections 3 and 4 of KCOCA 2000.
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15. The allegations against appellant are that he joined the Tiger Gang in 2012 and since then he is an active member of the Gang, indulged in threatening the businessmen and collecting hafta. In order to cover his criminal activities, he has secured money lending licence and collect blank cheques, promissory notes from the businessmen. He also threaten the government officials by misusing the provisions of RTI Act and collect money from them. He utilize the ill-gotten money for the expenses of gang members, to purchase properties. Though the income certificate obtained by him from the Tahsildar, Gokak state his annual income as Rs.1,50,000/- during investigation the value of properties purchased by him amount to Rs.75,40,000/-.
16. It is also found that before and after the murder of Siddappa Kanamaddi, he was in touch with accused No.1-Sunil Murkibavi, accused No.2-Kedari Jadhav and accused No.12-Prasad Badiger over cell phone and after his arrest accused No.1-Sunil Murkibavi contacted the
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 appellant over phone and directed him to shift the documents, blank cheques and bonds to some other place and accordingly appellant has shifted them to the house of CW14-Basu Godageri. As per the directions of accused No.1-Sunil Murkibavi and accused No.2-Kedari Jadhav, appellant has forcibly collected money from CWs53, 54, 85, 94, 95, 133, 144, 146, 147, 148, 149, 150, 174, and 199 and these facts are forthcoming from the CDR reports and accordingly he has committed the offences punishable u/secs.120B, 109, 201 r/w/s 34, 35, 37 and 149 IPC and 3(2), 3(4), 3(5) and Section 4 of KCOCA 2000.
17. It is argued by the learned senior counsel for the appellant that the appellant has undergone more than 50% of the minimum sentence prescribed for the offences punishable under Sections 3 and 4 of KCOCA 2000 and as such, he is entitled for bail. It is pertinent to note that under Section 3 of KCOCA 2000, the punishment prescribed for organized crime is death or imprisonment for life if the act has resulted in death of any person and
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 shall also be liable for fine which shall not be less than 1 lakhs rupees. In other cases, the punishment prescribed shall not be less than 5 years, but which may extend to imprisonment for life and shall also be liable for fine which shall not be less than 5 lakhs rupees. Similarly as per Section 3(2) whoever conspires or attempts to commit or advocates, abets or knowingly facilitate the commission of an organized crime or any act preparatory to organized crime, shall be punishable with imprisonment for a term which shall not be less than 5 years, but which may extend to imprisonment for life and shall also be liable for fine which shall not be less than 5 lakhs rupees. Similar punishment is prescribed for Sections 3(3) and 3(4) of KCOCA 2000.
18. Under Section 4 the punishment prescribed for possessing unaccounted wealth on behalf of a organized crime syndicate shall not be less than 3 years, but it may extend to imprisonment for a term of 10 years and shall also be liable to fine, which shall not be less than 1 lakh
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 rupees and such property shall also be liable for confiscation.
19. Thus in the light of these provisions, having regard to the maximum punishment prescribed which is 10 years and also up to imprisonment for life, it does not lie in the mouth of appellant to claim that having undergone imprisonment for 1094 (3 years) days he is entitled for bail.
20. The learned senior counsel for appellant also submitted that accused No.14-Anand Gotadki has been granted bail by the Hon'ble Supreme Court and on the ground of parity, appellant is also entitled for bail.
21. In this regard, highlighting the conduct of the appellant and other accused, the learned Addl.S.P.P. and learned counsel for respondent No.2/defacto complainant submitted that the Special Court rejected the bail applications of accused Nos.11 to 17 vide order dated 01.03.2021. Challenging the same, accused No.11 filed
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 Crl.A.No.100093/2021 on 22.04.2021, beyond accused No.14 filed Crl.A.No.100089/2021 on 21.06.2021. However by a common order dated 02.07.2021, the said appeals came to be allowed granting bail to accused Nos.11 and 14 and the same is challenged before the Hon'ble Supreme Court. He would further submit that the appellant and 2 others i.e. accused No.12 and 15 challenged the said order in Crl.A.No.100152/2021 on 05.07.2021. They got it dismissed as not pressed on 22.07.2021 before the same bench which granted bail to accused Nos.11 and 14.
22. They would submit that later on they filed Crl.A.No.100198/2021 on 13.09.2021 challenging the same order. It came before the same bench. However, by observing that the earlier appeal in Crl.A.No.100152/2021 was dismissed as withdrawn i.e., it was not disposed of on merits, the said appeal was ordered to be placed before the regular roster. On 25.09.2021, the fact of it being a successive appeal for bail and that the earlier petition was
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 dismissed as not pressed, was brought to the notice of the Court. The order sheet dated 29.09.2021 note the filing of application under Section 482 Cr.P.C. to treat the appeal as a successive bail petition and the Court was pleased to note that maintainability of such application is required to be considered. However on 18.01.2022, they got the appeal dismissed as not pressed.
23. They would further submit that in order to circumvent the hurdle of limitation, once again accused Nos.12, 13 and 15 (including the present appellant) filed fresh bail application before the Spl.Court and on its rejection, vide order dated 14.10.2022, the appellant has filed this appeal on 27.01.2023.
24. As already discussed, the maximum punishment prescribed for the offences punishable under Sections 3(ii) and 4 of KCOCA 2000 is imprisonment for life and 10 years respectively and having regard to the period during which the appellant is in custody, it cannot be said that he has undergone custody for more than 50%
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 of the punishment prescribed and on that ground, he is entitled for bail.
25. So far as the bail granted by the Hon'ble Supreme Court to accused No.16 is concerned, it is in exercise of powers of the Hon'ble Supreme Court under Articles 136 of the Constitution. Having regard to the specific allegations made against the appellant, the evidence collected against him and his complicity in the crime and the maximum punishment which carries for the offences punishable under Sections 3 and 4 of KCOCA 2000, this court is of the considered opinion that appellant is not entitled for bail both on the ground of merit as well as on parity and accordingly, the following:
ORDER Appeal filed by the appellant/accused No.13 u/sec.14-A(2) of SC and ST (POA) Act is hereby dismissed.
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NC: 2023:KHC-D:11180 CRL.A No. 100142 of 2023 The impugned order dated 14.10.2022 by the KCOCA Special Judge, Belagavi is hereby confirmed.
Sd/-
JUDGE KGK,AC,CLK List No.: 1 Sl No.: 13