Karnataka High Court
Nilesh S/O. Govind Nandawankar Alias ... vs State Of Karnataka on 6 June, 2022
Author: K. Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6th DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.100351/2022
BETWEEN:
1 . NILESH
S/O. GOVIND NANDAWANKAR ALIAS SAVANTH
AGED ABOUT 41 YEARS,
RESIDING AT. SANITORIUM LA RANGWALA CHALA
ROOM NO.3 JP ROAD BEHIND BHARATH CAFE HOTEL,
KHATACOFFAR WEST MUMBAI
2 . SUNIL ALIAS MAMU,
S/O. DEVURAM BHASONDE
AGED ABOUT 55 YEARS,
RESIDING AT CHAMBUSURA,
NEAR SUMANAGARA BRIDGE, MUMBAI
3 . ANKUR SINGH ALIAS GOLU
AGE. 26 YEARS, OCC. NIL,
R/O. MUMBAI.
.. PETITIONERS
(BY SRI. SIRAJUDDIN AHMED, ADVOCATE)
AND:
STATE OF KARNATAKA
BY OLD HUBLI POLICE STATION
REPRESENTED BY HCGP
HIGH COURT OF KARNATAKA
2
AT DHARWAD.
.. RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP.)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING
TO ENLARGE THE PETITIONER/S ACCUSED NO.7, 8 AND ACCUSED NO.9
ON BAIL IN OLD HUBBALLI P.S. CR.NO.90/2020, CC NO.1619/2020 FOR
THE OFFENCES PUNISHABLE U/S 143, 147, 148, 120(B), 302, 303, 201,
387, 506 R/W 149 OF IPC AND 25 OF ARMS ACT, PENDING BEFORE THE
COURT OF IV ADDITIONAL CIVIL JUDGE AND JMFC, HUBBALLI,
DHARWAD CITY.
THIS PETITION COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed by the petitioners/accused Nos.7 to 9 under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) for granting bail in C.C. No.1619/2020 registered by the Old Hubballi Police Station for the offences punishable under Sections 143, 147, 148, 120B, 302, 303, 201,387 and 506 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity) and Section 25 of the Arms Act.
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2. Heard the arguments of the learned counsel for the petitioners and the learned High Court Government Pleader for the respondent/State.
3. The case of the prosecution is that, accused No.6 is a life convict prisoner, who is in jail. When he was lodged in Dharwad prison, he came to in cntact with deceased Irfan @ Fruit Irfan. At that time, accused No.5 was introduced by another prisoner namely Swami. When accused No.6 came to Court, accused No.5 introudced accused No.1-Aftab Bepari to accused No.6. There was a land dispute rearding Sy.No.394 measuring 6 acres 30 guntas of land belonging to CW-160-Mujeeb Ur Rahman. However, the case is pending before the Court in respect of the said land. In the meantime, accused No.5 introduced CW-160 to accused No.6 to solve the dispute as deceased Irfan has illegally acquired the disputed land and accused No.6 gave assurance to CW-160 that deceased is known to him and he will solve the entire issue. At the same time, accused No.1 and accused No.5 informed accused no.6 that deceased Irfan is collecting roll call/Hafta in the name of accused No.6. Believing the said version of accused Nos.1 and 5, 4 accused No.6 called deceased Irfan over phone and demanded him to give Rs.25,00,000/-. He denied the same and stated that he is in jail and he has become old and cannot do anything and he abused him in filthy language. Therefore, accused No.6 became very angry against the deceased Irfan and he decided to kill him and hatched conspiracy with other accused. It is further alleged that in furtherance of the said conspiracy accused Nos.12 and 13 purchased SIM cards in the name of charge sheet witnesses and instigated accused Nos.1 to 5 to kill the deceased-Irfan on the instructions of accused Nos.5 and 6. That on 06.08.2020 there was a marriage reception of one Harbaz near Gadihal Cross, Karwar road nearby Altaj Hotel. After completion of the reception ceremony, the complainant, Irfan Syed(deceased), Akhil Raichur- CW-55, Shabbir Gudamala-CW-57, Ahammed Saleem Shek-CW-58 and others were standing infront of Altaj Hotel and at about 5.30 pm 3 persons came in a bullet motorcycle and other 3 person on another motorcycle to the spot. One person sitting on the bullet motorcycle got down and shot at deceased Irfan with pistol and another person came behind and shot the deceased Irfan on his head portion and all of them fled away on their motorcycles. It is 5 the further case of the prosecution that accused Nos.1 to 5 and 12 have assisted and provided weapon to accused Nos.7 to 10 sharp shooters at the instance of accused No.6. Accused Nos.1 and 2 were at the spot on motorcycle and after the fire shot by accused Nos.7 to 10, they took them on their motorcycle from the spot and went away. Based on the complaint of one Usman Sheak, a case was registered by the police for the aforesaid offences. Their bail petitions came to be rejected by the learned Sessions Judge. Hence, the petitioners are before this Court.
4. Learned counsel for the petitioners contended that the accused are innocent of the alleged offences. They have been falsely implicated. In fact, the persons who conspired to kill are alleged to be the persons who have paid the money for purchasing the weapon and SIM cards are released on bail and some of them are made as eye witnesses as CWs.81, 82 and 85 and accused NO.15 is also granted anticipatory bail. The petitioners are in custody for more than 2 years. All co-accused are granted bail by the co-ordinate bench of this Court except accused No.6 who is a life convict. The trial is still fur longing as the accused are lodged 6 in various other jails in the State. Therefore, the trial Court is not able to secure their presence for the purpose of committing the case. He further submitted that nearly 2 years is completed after filing of charge sheet.
Learned counsel further contended that the deceased Irfan is a rowdy sheeter and presently, the Commissioner of Police had debarred him for the Hubballi city and there are various cases against him and the person who sold the property and who has filed the case in respect of the land, has been made as witnesses. The Investigating officer has not properly conducted the investigation. Therefore, prayed for granting bail.
5. Per contra, learned High Court Government Pleader for the respondent/State seriously objected the bail petition and contended that the entire allegations in respect of the conspiracy, payment is on the other accused who have been granted bail but in fact these accused Nos.7 to 9 have actually committed murder by firing towards deceased Irfan and escaped on the bullet motorcycles. Therefore, the ground of parity will not be available to these petitioners. They are dangerous to the society. If they are 7 granted bail, they may tamper the prosecution witnesses and also likely to commit similar offences. They are the followers of accused No.6 ho is operating all accused persons from jail.
6. Learned Government Pleader further contends that the entire incident has been capture in the CC camera and the footage has been recovered by the police which reveals that it is these petitioners who have committed murder of Irfan. Hence, prayed for dismissal of the petition.
7. Having heard the learned counsel for the parties, perused the records.
8. Of course charge sheet is voluminous which contains 2 volumes containing more than 1600 pages and 158 witnesses. The co-ordinate Bench of this Court has granted bail to accused Nos.1 to 4, 5 and 12 who are stated to have conspired for the commission of the murder. In Criminal Petition No.100450/2021 and connected matters disposed of on 15.06.2021 and in Criminal Petition No.100183/2021 dated 2.3.2020 the Co-ordinate Bench of this Court has granted bail to accused Nos.5, 12, 1 to 4 and accused No.12, respectively. I have gone through the orders passed by the 8 Co-ordinate Bench of this Court granting bail to the aforesaid accused.
9. On perusal of the orders and the case records where the conspiracy to commit murder of deceased Irfan was at the instance of accused No.6-Bachcha Khan, who is in jail. It is stated that he is in jail for more than 20 years as he is life convict and also facing 5 to 6 other criminal cases. He was operating other persons from the jail in committing the murders and hatching plan to commit murder outside the jail by sitting in jail.
10. Be that as it may, on looking to the case of the prosecution, the allegations against these petitioners is that, on the date of the incident, at the instance of other accused persons by watching the situation where the deceased had attended the marriage function on the fateful day, accused Nos.7, 8 and 9-these petitioners came on motorcycle and accused No.7 fired towards Ifan which was misfired and the bullet had hit to the thigh of the deceased and accused No.9-3rd petitioner herein properly targeted and fired on the head which caused head injury and Irfan 9 succumbed to the injuries. Accused Nos.7 to 9 came on motorcycle which was rode by accused No.8 and escaped from the spot.
11. A perusal of the entire records and orders passed by the Co-ordinate Bench regarding shooting the deceased by accused Nos.7, 8 and 9 are not discussed in the orders. They are all supari killers, purchasers of the mobile SIM and pistol but the pistol recovered from accused Nos.1 to 5 but not from these petitioners. But it does not mean that these petitioners have not committed murder of Irfan. Of course Irfan may be debarred by the police department as he was a headache to the police as he was a rowdy sheeter. However, no person has a right to kill or licnece to kill any one even if he is a rowdy sheeter, without due process of law. No person has authority to take the law into their hands to commit or kill any person in the society except by the Court of law. Therefore killing/committing murder of the deceased, who is a rowdy sheeter, cannot be justified by other accused persons.
12. Therefore, I am of the view that the alleged offence is heinous one and the petitioners are professional killers and killed a person in public with pistol and it cannot be treated on par with the 10 other accused who have been granted bail by the Co-ordinate Bench of this court and these petitioners cannot be taken on the ground of parity for exercising power under Section 439 of Cr.P.C. Therefore, the petitioners are not entitled for bail.
Accordingly, the criminal petition is dismissed. However, the trial Court shall make an endeavor to secure the presence of the accused through video conference and the Magistrate to commit the case to the Court of Sessions immediately and the trial Court shall make all endeavour to dispose of the matter.
Sd/-
JUDGE kmv