Karnataka High Court
Jiya @ Isubu Shiyad @ Jiyas vs State Of Karnataka on 7 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2022
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.10549/2022
BETWEEN:
JIYA @ ISUBU SHIYAD @ JIYAS
S/O BADUVAN KUNHI
AGED ABOUT 38 YEARS
R/A AMBIKANA HOUSE
PAIVALIKA, KASARGOD DISTRICT
KERALA-671332
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BENGALURU)
... PETITIONER
(BY SRI HASMATH PASHA, SENIOR COURSEL FOR
SRI KARIAPPA N.A., HP UNIQUE & CO.)
AND:
STATE OF KARNATAKA
BY ULLALA POLICE STATION
D.K. MANGALURU-575020
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
... RESPONDENT
(BY SRI K.K.KRISHNA KUMAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.63/2017 OF ULLAL P.S., MANGALURU CITY FOR THE
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OFFENCES P/U/S. 120B, 143, 144, 147, 148, 341, 504, 506,
302, 307, 326 R/W 149 OF IPC AND SECTIONS 3, 25(1)(1B)
UNDER SECTION 7, 25(1)(1A) AND 27(3) OF ARMS ACT ON THE
FILE OF THE J.M.F.C - VII COURT AT MANGALURU IN
C.C.NO.1282/2021 AND ETC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.11.2022, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This is a successive bail petition is filed under Section 439 of Cr.P.C. praying this Court to enlarge the petitioner-accused No.2 on bail in respect of Crime No. 63/2017 of Ullal Police Station, Mangaluru City for the offences punishable under Sections 120B, 143, 144, 147, 148, 341, 504, 506, 302, 307, 326 R/W 149 of IPC and Sections 3, 25(1)(1B), 7, 25(1)(1A) and 27(3) of Arms Act.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. This petition is a successive bail petition filed by the petitioner-accused No.2. Earlier, this petitioner has approached 3 this Court filing the Crl.P.No.4023/2022 and the same was rejected vide order dated 22.06.2022 and while rejecting the bail petition, this Court referred the judgment of the Apex Court in the case of KUMER SINGH vs STATE OF RAJASTHAN AND ANOTHER reported in 2021 (6) SCJ 227 relying upon paragraph 14 wherein it is held that it is required to be noted that all the accused are charged for the offences punishable under Sections 302, 307 read with Section 149 of IPC, the Court cannot consider the individual role of the accused and the same is not required to be considered when they alleged to have been the part of the unlawful assembly and rejected the bail petition.
4. The petitioner has also approached the Apex Court filing Special Leave Petition (Crl.) No.7655/2022 and the same was rejected vide order 29.08.2022 and while rejecting SLP considered the material on record and held that we do not feel persuaded to entertain the SLP at this stage, particularly looking to the facts that in relation the incident of the year 2017 and the petitioner was allegedly absconding and through body warrant only he was apprehended and also taken note of the conduct of 4 the petitioner. However, leave it open for the petitioner to renew his prayer for bail, if the trial is not proceeded expeditiously and if there be any legitimate ground for making such prayer. It is further observed that none of the observations occurring in the order impugned shall come in the way of consideration of renewed bail plea of the petitioner at the appropriate stage.
5. Now the petitioner has moved the successive bail petition before this Court. The main grounds urged in the successive bail petition is that after the arrest of this petitioner conducted the test identification parade and CW1 to 4 have not identified this petitioner and the presence of this petitioner is in committing the crime is ruled out. After his arrest, pistol which is said to have been used to fire on the deceased was recovered and the same was sent to FSL and the FSL report which is received is clear that the pistol is not used in the incident. The previous bail application was rejected only because this petitioner shot fire with the pistol. When there is conflict of eye- witness version with ballistic experts opinion, it is an incurable 5 defect and cause of death as per the PM report is due to chop and stab wounds and not due to injury No.26. The name of the petitioner was not mentioned in the FIR and in the other material documents, because he was not the participant and he has been falsely implicated in the case. It is further contended that he has been arrested on 12.11.2021 in Cr.No.37/2020 and got remanded to JC and he was secured by issuing the body warrant and there is no prima facie case against the petitioner herein. Now the matter is pending before the I Additional Sessions Judge, Mangalore, in which almost all witnesses have been examined who are the witnesses i.e., PW1 to PW22 and none of them have implicated this petitioner. It is also contended that petitioner's mother was aged about 62 years and she is suffering from multiple diseases of Spondylosis of Dorso Lumbar Spine, Oesteorthritis of both knees and hypertension and she needs to undergo surgery for knee replacement and this petitioner is also having permanent abode having wife and two months baby and hence, prayed to enlarge the petitioner on bail. 6
6. The counsel in support of his argument relied upon the judgment of the Apex Court reported in 1994 SUPP (2) SCC 289 in the case of MANI RAM AND OTHERS VS STATE OF UP and brought to notice of this Court to paragraph 9 contending that when the expert evidence shows no gun shot injury, it would not be safe to base conviction on evidence of such a witness and Apex Court also held that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence.
7. The counsel also relied upon the judgment of Apex Court reported in (1975) 4 SCC 497 in the case of RAM NARAIN SINGH vs STATE OF PUNJAB wherein also the Apex Court held that conflict between prosecution case and medical evidence and ballistic expert's evidence unexplained, direct evidence not corroborated and also held that a material infirmity discrediting the entire prosecution case.
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8. The counsel also relied upon the judgment reported in (1984) 1 SCC 284 in the case of BHAGIRATHSING vs STATE OF GUJARAT wherein the Apex Court held that considering the bail petition under Section 439 of Cr.P.C held that it is necessary for the Court to examine the nature and gravity of the circumstances in which the offences was committed. If there is no prima facie case, there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.
9. The counsel also relied upon the judgment reported in (2018) 3 SCC 22 in the case of DATARAM SINGH vs STATE OF UTTAR PRADESH AND ANOTHER wherein it is held that grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception. 8
10. The counsel also relied upon the judgment reported in (1978) 1 SCC 579 in the case of BABU SINGH AND OTHERS vs STATE OF UP, wherein the Apex Court held that an order refusing an application for bail does not necessarily preclude another on a later occasion giving more materials, further developments and different considerations. While the Court should set store by the circumstances that the bail application was once rejected it cannot be said that the Court is barred from second consideration at a later stage.
11. The counsel also relied upon the judgment reported in (2018) 11 SCC 458 in the case of LT.COL.PRASAD SHRIKANT PUROHIT vs STATE OF MAHARASHTRA wherein also held that subsequent bail application when the appellant made out a prima facie for release bail, the same has to be entertained. As regard the other parameters to be considered while deciding the application of bail, like, reasonable apprehension of the witnesses being tampered with and danger, of course, of justice being thwarted by grant of bail, needless to state that already some of the witnesses have retracted their 9 statements made before ATS and held that we must note that though an accused has a right to make successive applications for grant of bail, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
12. The counsel referring all these judgments vehemently contend that though earlier application was rejected and Apex Court also given liberty to approach the Court to seek bail on the legitimate ground. Hence, prayed this Court to enlarge him on bail.
13. Per contra, the learned High Court Government Pleader appearing for the State would submit that the crime was committed in the year 2017 and he was taken to the custody when he was arrested in other crime in the year 2021 and till then, he was absconded and Apex Court also while rejecting the SLP has observed that the Court has to take note of the conduct 10 of the petitioner. The counsel also submits that he is an habitual offender and he has started committing the crime from 2008 onwards for the heinous offences of dacoity, mischief and attempt to murder and also offence under Section 302 of IPC which was committed in the year 2014. The counsel also would vehemently contend that the specific allegation made against him that he only brought the other assailants by driving the car and also all of them have conspired with each other to commit the murder and sent the other assailants in a lorry to cause accident and thereafter all of them have alighted from the car with deadly weapons and committed the murder. The counsel also submits that the death is also on account of multiple injuries i.e., 28 injuries caused to the victim and the petitioner was also the part of unlawful assembly and when the injured noticing this petitioner along with others alighted from the car and other accused who have caused the accident started running from the place and he was chased and committed murder in front of the petrol bunk. The counsel also submits that the grounds which have been urged were already urged before this Court and also before the Apex Court. The Apex Court while rejecting the 11 application held that at this juncture the bail petition cannot be entertained and only given liberty to approach the Court if any legitimate ground for making such prayer when the trial is not proceeded expeditiously and also observed that the same can be considered at the appropriate stage. Hence, the petitioner is not entitled for the bail.
14. Having heard the respective counsel appearing for the parties and also on perusal of material on record particularly the accusation made in column No.17 of the charge sheet against this petitioner is that he is the part of the unlawful assembly and he came along with other accused in a car bearing No.KA14-Q-376 and this petitioner only driven the said car and prior to that CW1, 2 and the victim were coming in the car KL14- M-7005 and accused No.6 drove the tipper and caused the accident to the car of the victim and at that juncture this petitioner and accused No.1 alighted from the car with a pistol and accused No.3 and 4 alighted from the car with talwar and fired on the car in which the victim and other eye-witnesses were traveling and CW6 witnessed this incident and it is an 12 allegation that all of them being the part of the unlawful assembly made an attack on the injured and committed the murder inflicting the injury by accused No.3 and 4 with the deadly weapon like talwar as a result, while shifting the injured to the hospital, he lost his life.
15. No doubt, the counsel for the petitioner has contended that Apex Court has given the liberty and this Court directed the petitioner to place the copy of the SLP filed before the Apex Court to see whether similar grounds are urged before the Apex Court or not. Accordingly, along with the memo dated 19.11.2022, placed the copy of the SLP. On perusal of SLP it shows that the similar grounds were urged that in the FIR the name of the petitioner was not mentioned by the complainant and no eye-witnesses has identified the petitioner during the test identification parade and even injured witness who was the complainant of the case has not identified the petitioner in the TI parade and the very same grounds were urged in the SLP filed before the Apex Court and similar grounds are urged in the present petition and also urged the ground that the petitioner 13 has made an accused No.2 and accused No.1 and 2 were armed with pistol and accused No.2 fired the bullet from the pistol to the right side window of back side of the car and charge sheet has been filed against the accused No.1 and 2 along with other accused persons and now contend that the pistol which was recovered at the instance of this petitioner was not used but the fact that he was a part of unlawful assembly and also it is clear that he himself and accused No.1 and 3, 4 went in the car and alighted from the car with deadly weapons like pistol as well as talwars and this petitioner only drove the vehicle and carried the other assailants along with him and no dispute with regard to the principles laid down in the judgments referred supra by the petitioner's counsel that any number of petitions can be filed asserting the full material. But these are the materials and grounds already been urged before this Court as well as Apex Court and the Apex Court also while dismissing the bail petition comes to the conclusion that at this juncture, no grounds are made out. However, observed that if expeditiously matter has not been taken, so he can approach the Court. But the fact that the incident was occurred in the year 2017 and he was 14 absconded from 2017 to 2021 and the conduct of the petitioner was also taken note of by the Apex Court while dismissing the SLP. This petitioner was also secured before the Trial Court when he was arrested in another crime and through the body warrant, secured his presence and Apex Court also dismissed his bail petition on 29.08.2022 observing that the petitioner can renew his prayer for bail, if trial is not proceeded expeditiously and if there be any legitimate ground for making such prayer. I have already pointed out that similar grounds are also urged before the Apex Court in SLP and no other legitimate grounds are urged before this Court apart from the grounds which have been urged before the Apex Court. And also it has to be noted that this petition is filed on 22.10.2022 i.e., within a span of two months of rejection of the order by the Apex Court and the question of taking the proceedings for trial expeditiously within a period of two months cannot be a ground to consider the bail petition.
16. The Apex Court while rejecting the bail petition comes to the conclusion that the observations occurring in the order shall come in the way of consideration of renewed bail plea 15 of the petitioner at the appropriate stage and not made out any appropriate stage as observed by the Apex Court in the SLP. This petitioner was secured before the Trial Court only on issuance of body warrant i.e., on 29.11.2021 and no doubt, in respect of other accused persons already charge was framed and proceeded with trial and recorded the statement of PW1 to PW20 and in that case, if no material is forthcoming in the trial cannot be a ground to enlarge this petitioner since this petitioner is not the accused who is facing the trial in the said case and in the absence of this petitioner also cannot expect the prosecution evidence against this petitioner. The Trial Court also while dismissing his bail petition in paragraph 13 taken note of the principles laid down in the judgment of the Apex Court reported in (2005) 8 SCC 21 in the case of STATE OF UP THROUGH CBI vs AMARMANI TRIPATHI with regard to prima facie case, nature and gravity of the charge, severity of punishment and danger of the accused absconding or fleeing, if released on bail. In this case also, he was absconded from 2017 to 2021 and the Court has to take note of the conduct of the petitioner, his character, behaviour, means, position and standing of the 16 accused and there are number of cases registered against him and in all there were 7 cases, crimes were started from 2008 till 2017 as well as subsequent to this crime also he was accused in another crime of offences punishable under Section 120B, 109, 395, 364, 302, 201, 303, 465, 473 of IPC in Cr.No.18/2020 of Jevaregi police station of Gulbarga district and taken note of all these factors into consideration and comes to the conclusion that if the petitioner is enlarged on bail, there is likelihood of absconding again.
17. Having considered the reasons assigned by the Trial Court also the grounds which have been urged before the Court, the fact that he was the part of the unlawful assembly and he himself has driven the car in which the other assailants also came along with deadly weapons like pistol as well as talwar and inflicted 28 injuries out of that injury 26 is pistol injury and no doubt, report is received that the weapon which was seized from him was not used but the fact that CW1 to 4 are the eye- witnesses who were present at the time of the incident and he being the part of the unlawful assembly and in view of the 17 judgment of the Apex Court in the case of KUMER SINGH referred supra, in paragraph 14 the Apex Court observed that it is to be required to note that all the accused are charged for the offences punishable under Sections 302, 307 read with Section 149 of IPC and in this case also invoked the offences punishable under Sections 302, 307, 326 r/w Section 149 of IPC and they are also part of the unlawful assembly and invoked the offences punishable under Sections 143, 147, 148 and also the offences punishable under Sections 120B and allegation that all of them have conspired with each other and made a plan to cause the accident by using the tipper lorry and immediately this petitioner alighted from the car along with other accused with deadly weapons and no doubt, the counsel appearing for the petitioner also brought to notice of this Court that as per the PM report multiple injuries are caused with the stab and chop wounds and the accused 3 and 4 who accompanied with this petitioner were holding these weapons, inflicted injuries and when all of them have shared the common object in furtherance of common object and eliminated the deceased by chasing when he tried to escape from the spot. The very contention that no material is 18 collected against this petitioner cannot be accepted when he was part of the unlawful assembly and accompanied with deadly weapons and assailants. Hence I do not find any merit in the successive bail petition to enlarge the petitioner on bail.
18. In view of the discussions made above, I pass the following:
ORDER The successive bail petition filed by the petitioner under Section 439 of Cr.P.C is rejected.
Sd/-
JUDGE SN