Karnataka High Court
Mahanteshappa Alias Malatesh S/O. ... vs The State Of Karnataka on 23 July, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23 R D DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.101294/2021
BETWEEN:
1. MAHANTESHAPPA @ MALATESH
S/O. SHEKHA PPA BARKI,
AGE 55 YEARS , OCC: AGRI CULT URE
AND BUSINESS ,
R/O. HAMSABAVI ROAD,
NEAR PURASABE,
BYADAGI, DIST . HAVERI - 581106.
2. KIRAN S/O. MAHA NTESHAPPA BARKI ,
AGE 25 YEARS , OCC: BUSIN ESS,
R/O. HAMSABAVI ROAD, NEAR PURA SABE,
BYADGI, DIST . HA VERI - 581106
3. MANJAPPA S/ O. S HEKHAPPA BARKI,
AGE 50 YEARS , OCC: AGRI CULT URE AND
COUN CILOR, T.M.C.,
R/O. HALEPETE ON I, BYADGI ,
DIST. HAVERI - 581106
...PETITIONERS
(BY SRI. K.L.PATIL, ADV OCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH BYADA GI POLICE STATION -581106,
NOW REPRES ENTED BY S .P.P.,
HIGH COURT OF K ARNATAKA,
BENCH AT DHARW AD.
... RES PONDENT
(BY SRI.RAMESH B. CHIGARI , HCGP)
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THIS CRIMINAL PETITION IS FILED UNDER
SECTION 438 OF CR.P.C., SEEKING TO ALLOW THE
CRIMINAL PET ITION AND ENLARGE THE
PETITIONERS/ACCUSED N O.1 T O 3 ON ANTICIPAT ORY
BAIL IN CONNECTION WITH BYADAGI P.S . CRIM E
NO.71/ 2021 WHI CH IS REGISTERED FOR OFFENCE
PUNISHABLE UNDER SECTION 323, 324, 448, 302 R/W.
SECTION 34 OF IPC, ON THE FILE OF THE PRINCIPA L
CIVIL J UDGE (JR. DN.) AND J.M.F.C, COURT, BYADGI .
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the accused Nos.1 to 3 under Section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.71/2021 of Byadagi Police Station, registered for the offences punishable under Sections 323, 324, 448, 302 read with Section 34 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity). 3
2. The case of the prosecution is that one Anand Barki of Byadagi town has filed complaint stating that on 12.05.2021 at about 9.28 p.m., when he was in his house his elder brother Jagadesh Barki (deceased) had told over phone that their uncle's son accused No.1-Mantesh and others have came to assault him asking why he has filed civil suit, and requested to come soon. So the complainant taking his another elder brother went near his brother's house at about 9.30 p.m. At that time, the accused No.1 was asking the deceased why he has filed civil suit and abused him and threatened to kill him and at that time he was accompanied by his son Kiran-accused No.2 and his brother accused No.3-Manjappa holding club and stone, and shouting as they do not leave him alive and dragged him 4 outside. Then the complainant and his brother Ashok requested them not to do like that and all of us are brothers and what happened if he filed civil suit and let us follow it. But they did not heed the complainant's words and they challenged that they will see how they are going to take the property and saying that if he survives he will take the property etc., entered the house of the deceased and started assaulting the deceased with club, and other accused persons were supporting and saying to take the deceased outside to kill him. At that time, the complainant, his brother Ashok and his brother's wife Chandrakala @ Nanda and his father Gundappa tried to rescue the deceased Jagadesh. But the accused persons abused the deceased and they were standing near the gate and door saying that today they 5 are not going to leave him and were going to kill him. At that time, the complainant sent the deceased Jagadesh suggesting to give complaint at police station. The deceased went to the police station to register the complaint and at that time, accused No.1 assaulted on the head of the deceased with club and the deceased ran away to the police station and others chased him. Then the deceased by rescuing him went to the police station to give complaint. The complainant and others went at his brother's house and the incident was taken place at 9.35 p.m. At about 10.00 p.m., when the police came and informed that the deceased Jagadesh fell down near the police station, the complainant, his brother Ashok and his brother's wife Chandrakala @ Nanda rushed to the police station to see the deceased 6 Jagadesh. There was bleeding injuries on the head of the deceased and he was unconscious. Immediately, when they brought the deceased to the Government Hospital for treatment, the Doctor informed them that he is dead. They filed complaint against the accused Nos.1 to 3 and it came to be registered in Crime No.71/2021 in Byadagi Police Station for the offences punishable under Sections 323, 324, 448, 302 read with Section 34 of IPC. The petitioners/accused Nos.1 to 3 apprehending their arrest have filed Criminal Miscellaneous No.290/2021, seeking anticipatory bail and the same came to be rejected by the II Additional District and Sessions Judge, Haveri (sitting at Ranebennur) by order dated 01.07.2021. Therefore, the petitioners are before this Court, seeking anticipatory bail. 7
3. Heard the arguments of the learned counsel appearing for the petitioners and the learned High Court Government Pleader for the respondent-State.
4. It would be the contention of the learned counsel for the petitioners that, the petitioners are innocent, they have not committed any offence as alleged and they have been falsely implicated in the case. The accused Nos.1 to 3 went to the house of the deceased Jagadesh to ask him whey he has filed a suit in O.S.No.17/2021 and at that time, some altercation took place and the deceased went to the police station to file complaint and he collapsed in front of the police station and police intimated the same to the complainant. He contends that, the deceased has not died of any injuries sustained by him, but he died due 8 to cardiac failure. He contends that, the major portion of the investigation is over and therefore, the presence of the petitioners is not required for any investigation. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader has contended that, the offence alleged against the petitioners is a heinous offence, punishable with death or imprisonment for life. On perusal of the entire investigation material, there is a prima-facie case against the petitioners. The case is still under investigation stage and if at this stage, the petitioners are granted anticipatory bail, they will hamper the investigation and tamper the prosecution witnesses and flee from justice. With this, he prayed to reject the petition.
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6. 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 FIR, Complaint and investigation papers furnished by the learned HCGP.
7. What are the factors to be considered at the time of grant of anticipatory bail has been considered by the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra reported in AIR 2011 SC 312. The Hon'ble Apex Court, after analyzing various previous judgment and guidelines, has enumerated the following factors and parameters that can be taken into consideration by Courts while dealing with the anticipatory bail:
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(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860, the Court should consider with even greater care and 11 caution because over-implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
8. The accusations leveled against the petitioners is that, they went to the house of the deceased and asked him why he has filed a civil suit and at that time, some altercation took place and it is alleged that the petitioners 12 assaulted the deceased Jagadesh with stick and therefore, he went to the police station to file complaint. The deceased after coming out from the police station alleged to have collapsed near the police station and the police intimated the same to the complainant who took him to the Government Hospital, wherein the Doctor has intimated that he is dead. The postmortem has been conducted over the dead body of the deceased. The Doctor who conducted postmortem examination after receipt of FSL report has given the cause of death as 'Cardiac failure secondary to Atherosclerosis of Coronary Artery'. The Doctor who conducted postmortem examination has noted the following injuries over the body of the deceased:
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(1) Abrasion 4 cm X 3 cm over left
temporal area lateral to left eye
canthus;
(2) Abrasion 2 cm X 0.5 cm above left eyebrow;
(3) Laceration 0.5 cm X 0.5 cm over inner aspect of left side lower lip;
(4) Abrasion 1 cm X 0.5 cm over tip of nose"
The said injuries are abrasion, laceration over the head, eyebrow, nose and lip and they appears to be simple injuries. There is no fracture of skull of the deceased. The learned counsel for the petitioners has contended that, Atherosclerosis is a disease that occurs when plaque builds up on the inside walls of the arteries, Arteries are blood vessels that deliver blood and oxygen from the heart to the rest of the body. Plague is sticky substance made of 14 fat, cholesterol, calcium and other substances. As plaque builds up, the arteries become hard and narrow. Therefore, at this stage, the cause of death of the deceased is cardiac failure secondary to Atherosclerosis of coronary Artery. Whether the death of the deceased is a homicidal death has to be ascertained after filing of the final report and at the time of trial. At this stage on perusal of the investigation papers, it cannot be said that the death of the deceased is a homicidal death. Therefore, the petitioners are entitled for grant of anticipatory bail. The main objection of the prosecution is that, in the event of grant of anticipatory bail, the petitioners are likely to cause threat to the complainant and other prosecution witnesses and hamper the 15 investigation. The said objection may be set right by imposing 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 grant of anticipatory bail subject to certain terms and conditions. Hence, I pass the following:
ORDER Criminal petition filed under Section 438 of Cr.P.C. is allowed. In the event of arrest, petitioners/accused Nos.1 to 3 are ordered to be released on bail in connection with Crime No.71/2021 of Byadagi Police Station with the following conditions:
i. Petitioners/accused Nos.1 to 3 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) 16 each with one surety for the like sum to the satisfaction of the Investigating Officer/Jurisdictional Court.
ii. Petitioners/accused Nos.1 to 3 shall voluntarily appear before the
Investigating Officer, within 15 days from today and execute personal bond.
iii. Petitioners/accused Nos.1 to 3 shall co-operate in the investigation and make themselves available for
interrogation whenever required.
iv. Petitioners/accused Nos.1 to 3 shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
v. Petitioners/accused Nos.1 to 3 shall not obstruct or hamper the Police investigation and not to play mischief 17 with the evidence collected or yet be collected by the Police.
vi. Petitioners/accused Nos.1 to 3 shall attend the concerned Police station on every Sunday between 10.00 a.m. to 6.00 p.m. and mark their attendance for a period of three months or till filing of the final report, whichever is earlier.
Sd/-
JUDGE *Svh/-