Karnataka High Court
Roopesh R @ Roopeshgowda vs State Of Karnataka By on 4 November, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION No. 2722 OF 2020
BETWEEN
Roopesh R @ RoopeshGowda,
S/o. Raju, Aged about 25 years,
R/at Flat No.306, Ushodaya Apartment,
Jayanna Circle, Rajarajeshwari Nagar,
Bengaluru-560061.
...Petitioner
(By Sri. S. Sunilkumar, Advocate for
Sri. R.P.Chandrashekar, Advocate)
AND
State of Karnataka by
Mahalaxmi Layout PS
(CCB)
Represented by
State Public Prosecutor
High Court Building Complex
Bengaluru-560001.
...Respondent
(By Sri. V.M.Sheelvant, SPPI along with
Sri. K.S.Abhijith, HCGP)
This Criminal Petition is filed under Section 439
Cr.P.C praying to enlarge the petitioner on bail in
Cr.No.60/2019 of Mahalakshmipuram Police Station,
Bengaluru City, for the offence punishable under Sections
120B, 143, 144, 147, 148, 341, 427, 302, 201 read with 149
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of IPC and Section 3 of Karnataka Control of Organized
Crime Act.
This Criminal Petition coming on for orders this day,
the court made the following:
ORDER
This petition is filed under section 439 Cr.P.C by accused No.1 in Crime No. 60/2019 registered by the respondent police for the offences punishable under sections 143, 147, 148, 341, 427, 302 read with section 149 of IPC. Investigation has been completed and charge sheet has also been filed for the said offences and also for the offences under section 3 of the Karnataka Control of Organized Crimes Act, 2000 ( 'the KCOCA Act' for short).
2. Heard the learned counsel for the petitioner and the State Public Prosecutor.
3. This case pertains to killing of a person by name Lakshman Kumar. The motive appears to be this: Though the deceased being married, wanted to marry accused No.2. But she was in love with the petitioner, i.e., accused No.1. Having found the deceased being an obstacle in her way to 3 marry accused No.1, they both hatched a conspiracy and engaged accused Nos. 3 to 11 for killing Lakshman Kumar. On 7.3.2019 when Lakshman Kumar came near R.G.Hotel, Yeshwanthapur, accused Nos. 3 to 11 attacked and killed him. This is the gist of the entire incident.
4. The learned State Public Prosecutor takes preliminary objection to the maintainability of the petition. He refers to section 12 of the KCOCA Act. According to the State Public Prosecutor, if the Special Court refuses to grant bail, that order has to be challenged in the High Court by preferring an appeal. He also submits by referring to section 22(5) of the KCOCA Act that if an accused had been granted bail in connection with another case and commits any other offence thereafter, bail should not be granted. In support of his argument that appeal is maintainable and not the bail petition under section 439, he refers to the judgment of the Supreme Court in the case of State of Gujarat vs Salimbhai Abdul Gaffar Shaikh and Others [(2003) 8 SCC 50] and State of Andhra Pradesh through IG, NIA vs Mohd. Hussain @ Saleem [(2014) 1 SCC 258]. 4
5. Learned counsel for the petitioner refers to the order of the co-ordinate bench of this court in Crl. P. No. 8325/2018 to argue that similar objection was raised before the co-ordinate bench, but objection was not considered, though bail was not granted on merits.
6. Therefore, the question of maintainability of the petition is to be first decided. Learned State Public Prosecutor has referred to two judgments of the Supreme Court.
7. Section 12 of the KCOCA Act reads as follows : -
"12. Appeal. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court.
(2) Every appeal under this section shall be preferred within thirty days from the date of the judgment, sentence or order".
8. It is clear from sub-section (1) that any sentence or order passed by a Special Court is appealable to the High 5 Court, but so far as the order is concerned, it is made clear that it should not be an interlocutory order. That means, if the order is interlocutory, appeal cannot be preferred. The Supreme Court in the case of State of Gujarat vs Salimbhai Abdul Gaffar Shaikh and Others (supra) by referring to section 34 (4) of the Prevention of Terrorism Act, 2002 held that appeal shall lie to the High Court. Section 34(1) of the Prevention of Terrorism Act and section 12(1) of KCOCA Act are in pari materia. But, in a subsequent decision of the Supreme Court in the case of State of Andhra Pradesh through IG, NIA vs Mohd. Hussain @ Saleem, it is held in para 17 that an order granting or refusing bail is an interlocutory order. Though the matter before the Supreme Court was under the provisions of the National Investigation Agency Act, 2008, what is relevant here is the interpretation of the nature of the order on application for bail. Since it is held by the Supreme Court that any order passed on a bail application is an interlocutory order, I am of the opinion that section 12(1) of KCOCA Act is not applicable and the petition under section 6 439 Cr.P.C lies to this court for bail. Even the co-ordinate bench of this court has held that bail petition can be filed before the High Court under section 439 Cr.P.C in spite of invoking the provisions of KCOCA Act in the charge sheet.
9. So far as the merits of the petition are concerned, it is the argument of the petitioner's counsel that two eye witnesses are cited in the charge sheet, they are CW2 and CW3. Their statements were recorded on 7.3.2019 and accused were arrested on 10.3.2019. Their statements make it very clear that they did not tell the names of the assailants and they said that they could identify them. But there is no material indicating the accused being identified by CW1 and CW2. This position is not disputed by the State Public Prosecutor, but what he submits is that the eye witnesses could not be secured for identification purpose, probably they might have left for Nepal, their native country, after giving statement. All the efforts by the police to secure them failed. Therefore, this being the position, because of want of identification by the eye witnesses, their statements recedes to background.
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10. It is not as though that the case cannot be proved by other evidence. The only evidence that the State Public Prosecutor refers to is the confession statement of the petitioner. Section 19 of the KCOCA Act provides for relying upon a confession statement of the accused. But, the confession statement appears to have been recorded by the investigating officer who is of the rank of Assistant Commissioner of Police. Section 19 makes it very clear that only an officer not below the rank of Superintendent of Police should record confession statement. Therefore, the confession statement cannot be relied upon.
11. The State Public Prosecutor has argued that as KCOCA Act is invoked, bail cannot be granted, in view of involvement of the petitioner in another crime registered by Gnanabharathi Police Station for the offences under sections 380 and 457 of IPC. There is nothing on record to show the petitioner's involvement in the earlier case being a member of organized syndicate. KCOCA Act can be invoked only if it is proved that the accused is a member of an organized 8 syndicate. There may be sufficient cases against other accused. So far as the petitioner is concerned, there is nothing on record to show that he committed theft by lurking house trespass being a member of an organized syndicate. The another conspirator according to prosecution i.e., accused No.2, has been admitted to bail by this court in Crl. P. No. 3606/2019. Therefore, there is no impediment for granting bail in this case. Hence, I pass the following order : -
(a) Petition is allowed.
(b) Petitioner shall be released on bail on obtaining from him a bond for Rs.2,00,000/- and two sureties for the likesum to the satisfaction of the trial court.
He is also subjected to the following conditions : -
(i) He shall not tamper with the evidence and threaten the witnesses.
(ii) He shall regularly appear before the trial court till conclusion of trial.
(iii) He shall mark his attendance every week before the respondent police 9 station on a Monday in between 6.00 and 8.00 PM till trial is concluded.
(iv) If the petitioner gets involved in any criminal case in future, the bail will be cancelled automatically.
Any observation made with regard to invoking the provisions of KCOCA Act against accused No.1 shall not come in the way of the case being decided by the trial court based on evidence placed before it.
Sd/-
JUDGE ckl