Karnataka High Court
Irfan @ Chota Irfan vs The State Through on 10 November, 2021
IN THE HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.P NO.201509/2021
(THROUGH VIDEO CONFERENCE)
BETWEEN:
IRFAN @ CHOTA IRFAN
S/O ABDUL HAMEED SHEIKH,
AGE : 28 YEARS (AS PER LCO)
OCC: PLUMBER,
R/O TEJASWI NAGAR, I CROSS,
KALAGHATGI ROAD,
DIST. DHARWAD-580001.
...PETITIONER
(BY SRI VISHAL PRATAP SINGH , ADV.)
AND :
THE STATE, THROUGH NELOGI PSI,
JEWARGI, KALABURAGI,
REPRESENTED BY ADDL. SPP,
HIGH COURT, KALABURAGI BENCH,
KALABURAGI-585 107.
RESPONDENT
(BY SRI GURURAJ HOSALKAR, HCGP. THROUGH V.C.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEEDURE PRAYING THIS
COURT MAY BE PLEASED TO RELEASE THE PETITIONER ON
BAIL IN CRIME NO.18/2020 OF NELOGI POLICE STATION,
DIST. KALABURAGI FOR THE OFFENCES PUNISHABLE UNDER
SECTION 120(B), 109, 395, 364, 302, 201, 303, 465 AND 473
OF IPC PENDING BEFORE PRL. DIST. AND SESSIONS COURT AT
KALABURAGI.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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: ORDER :
The petitioner-accused No.6 is before this Court seeking grant of bail under Section 439 of the Criminal Procedure Code ("Cr.P.C." for short) in Crime No.18/2020 of Nelogi Police Station, Kalaburagi, initially registered for the offence punishable under Section 395 and 363 of Indian Penal Code ("IPC" for short), on the basis of first information lodged by the informant-Sri Abdul Khadar.
2. Brief facts of the case are that, the informant lodged the first information stating that his brother Mehath Tasleem was residing in Dubai for about 18 years and about one year back he returned from Dubai and started residing in his native place. While he was in Dubai and doing liquor business, he was having dispute with one Shafi Chapa. They had quarreled with each other complaint has been lodged against Mehath Tasleem in Bandar Police Station, Mangaluru, alleging robbery and in that connection, he was in prison. He was shifted to the Central Prison, 3 Kalaburagi, but he was granted bail. The informant along with Abdul Baseer and Sattar came to Kalaburagi in the car bearing registration No.KA.59/V- 3147 on 30.01.2020 at about 9.00 a.m., for the purpose of taking Mehath Tasleem to Mangaluru. The said Mehath Tasleem was released from the prison on 31.01.2020 at about 1.45 p.m. All of them went to the lodge and had their lunch. They left Kalaburagi at 3.30 p.m., to go to Mangaluru. When they reached near Ankalagi about 4.30 p.m., tow cars came following and waylaid the car in which the informant and others were proceeding, 9 to 10 persons got down from the car and snatched three I-phones. They abused Mehath Tasleem in filthy language and assaulted him with stone, iron rod and hammer. They kidnapped Mehath Tasleem in their car. Therefore, the informant lodged the first information with the police and requested them to registered the case and to trace Mehath Tasleem and to initiate legal action against the miscreants. The police have registered the 4 case and took up investigation. The investigation has been completed and the charge sheet is also filed for the offence punishable under Section 120-B, 109, 395, 364, 302, 201, 303, 465 and 476 of IPC.
3. It is stated that during the investigation, it was found that accused Nos.6, 7, 9 to 12 and 21 have criminally conspired to kidnap Mehath Tasleem after he was released from the prison and as a part of such conspiracy, they came to Kalaburagi in two cars and stayed in a lodge. Accused Nos.6, 7, 9 to 12 were watching as to when Mehath Tasleem will be released from the prison and were appraising about the developments. Accused No.8 also joined other accused in Kalaburagi at the instance of accused No.14 and all these accused came following the car in which Tasleem was proceeding and kidnapped him after assaulting the inmates of the car with the rod, hammer and threatened with knife and committed robbery. Tasleem was detained in the illegal custody with the help of accused Nos.14, 15, 17 and 19. In 5 the meantime, accused No.1 asked accused No.19 to arrange two boys and all have conspired together to do away with Tasleem. Accused Nos.6, 7 and 17 and another accused took Tasleem in a car, tied his hands with a thread and covered his face with a Towel and handed over him to accused Nos.15 and 16 as per the instructions of accused No.1. Accused No.17 paid ransom of Rs.50,000/- each to accused Nos.6 and 7. As a part of conspiracy, number plates of the cars were changed. On 02.02.2020 at 3.30 a.m., Tasleem was taken in the car to an open place situated at Shantinagar of Jujipa Mood village belonging to CW.35 and assaulted him with knife. Accused have chopped the neck, stomach and chest and left the dead body in the car and fled in the car brought by accused No.17. Accused No.1 with an intention to destroy the evidence of committing the crime, asked accused Nos.6 and 11 to hand over the cash and mobile to accused No.17. Accused No.14 and 15 have also destroyed the sim-cards with similar intention. It 6 is stated that incriminating materials such as, cars, rod, hammer, fake number plates and mobiles were seized from accused Nos.6, 9 to 12, 15, 20 and 21. Accordingly, charge sheet is filed against accused No.1 to 21. Now accused No.6 is before this Court seeking bail.
4. Heard learned counsel for the petitioner and learned High Court Government Pleader for respondent-State.
5. Learned counsel for the petitioner submitted that the petitioner is arrayed as accused No.6. The petitioner has approached this Court twice earlier, by filing Crl.P.No.200571/2020 which was came to be dismissed vide order dated 04.11.2020 and again in Crl.P.No.200410/2021, which was also came to be dismissed vide order dated 25.03.2021. Now, since accused No.5 is already enlarged on bail by this Court in Crl.P.No.200844/2021 vide order dated 14.09.2021, the petitioner is also entitle for 7 benefit of parity has to be enlarged on bail. He further submitted that, the accused is incarcerated for more than 18 months in prison and the trial in the matter may take sufficiently long period of time. Under such circumstances, the petitioner is entitle to be enlarged on bail and accordingly prays for allowing the petition.
6. Per contra, learned High Court Government Pleader opposing the petition submitted that, serious allegations are made against the present petitioner for various offences including the offence under Section 302 of IPC which is punishable either with death or imprisonment for life. Incriminating materials were recovered at the instance of the present petitioner, no such allegations are made against the accused No.5 and therefore the petitioner cannot seek the benefit of parity with accused No.5. He also submitted that, two earlier petitions which were similar to the present petition were dismissed by this Court by making specific observations. There are absolutely no reasons to form a different opinion and 8 therefore the petition is liable to be dismissed and accordingly he prays for dismissal of the petition.
7. Perused the materials on record.
8. The point that would arise for consideration of this Court is as follows:
"Whether the petitioner is entitled to be released on bail on the ground of parity?"
9. My answer to the above point is in the 'Negative' for the following :
: REASONS :
10. When the petitioner has approached this Court by filing Crl.P.No.200571/2020, a detailed order was passed on 04.11.2020 stating that the offence alleged against the petitioner is of serious in nature. Incriminating materials were recovered at the instance of the present petitioner. Informant being the eyewitness along with others had given their statements specifically naming the petitioner, even 9 though FIR was initially registered against unknown persons. Considering seriousness of the offence and specific overt-act alleged against the present petitioner and also the circumstantial evidence available prima facie shows commission of the offence by the petitioner. Therefore the said petition was came to be dismissed.
11. The second petition was came to be filed in Crl.P.No.200410/2021 alleging that, there is changed circumstances. But the said petition was came to be dismissed by this Court vide order dated 25.03.2021 specifically stating that, I do not find any reason to reconsider the opinion which is already formed while passing the order dated 04.11.2020.
12. Now the petitioner is again before this Court contenting that there is changed circumstances that, accused No.5 is already enlarged on bail by this Court. The discussions made in the earlier two orders passed against this petitioner is considered in the 10 light of the overt-act alleged against accused No.5. No incriminating materials were recovered at the instance of accused No.5. But Accused Nos.6, 7, 9 to 12 and 21 said to have criminally conspired to kidnap Tasleem after he was released from prison and as part of conspiracy, those accused came to Kalaburagi in two cars and stayed in a lodge. It was accused No.6, 7, 9 to 12 who were watching the movement of the Tasleem and subsequently accused No.8 also joined them. It is stated that, Tasleem was detained in custody, with the help of accused Nos.14, 15, 17 and 18, accused No.1 asked accused No.19 to arrange two boys and all the accused conspired to do away with Tasleem. Subsequently, accused No.6, 7 and 17 and another accused took him in a car by tying hands and covering his face with towel and handed over him to accused Nos.15 and 16 as per the instructions of accused No.1. Accused No.17 said to have paid the ransom of Rs.50,000/- each to accused Nos.6 and 7.
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13. It is the contention of the prosecution that incriminating materials such as the car, rod, hammer, fake number plates and mobiles were seized at the instance of accused Nos.6, 9 to 12, 15, 20 and 21. These facts and circumstances disclose that the specific allegations are made against accused No.6 for having taken active role in commission of the offence. There are no changed circumstances to reconsider the prayer made by the petitioner. Release of accused No.5 on bail is definitely not a changed circumstances to enable the petitioner to come before the Court once again. Under such circumstances, I do not find any merits in the contention taken by the petitioner and accordingly the petition is dismissed.
Sd/-
JUDGE EM