Karnataka High Court
Sri.Basavaraj @ Hubbayya S/O Kashawwa ... vs The State Of Karnataka on 19 July, 2018
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRL.P.NO.100925/2018
BETWEEN
SRI.BASAVARAJ @ HUBBAYYA
S/O KASHAWWA MYAGADI @ MANG
AGE: 26 YEARS, OCC: COOLIE,
R/O NANDAGANV, TAL. JAMAKHANADI,
DIST. BAGALKOT.
..... PETITIONER
(BY SRI S.A. PACHHAPURE, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH BANAHATTI POLICE STATION,
NOW REP. BY STATE PUBLIC PROSECUTROR,
HIGH COURT OF KARNATAKA, DHARWAD,
BENCH AT DHARWAD.
..... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C., PRAYING TO GRANT BAIL TO THE PETITIONER/
ACCUSED NO.23 IN CRIME NO.98/2017 REGISTERED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 143, 147, 148, 341,
120(B), 109, 307 AND 302 R/W SEC.149 OF IPC BY THE
RESPONDENT BANAHATTI POLICE STATION.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
This bail petition has been filed by the petitioner/accused No.23 under Section 439 of Cr.P.C. in respect of Crime No.98/2017 of Banahatti Police Station for the offences punishable under Sections 143, 147, 148, 341, 120(B), 109, 307 and 302 read with Section 149 of IPC.
2. Heard the learned counsel for the petitioner and so also learned H.C.G.P. for the State.
3. It is stated in the complaint that on 30.09.2017, one Chikkayya while returning from Navalagi towards Bandigani cross near the land of Balkrishna Naik at 8.00 a.m. was attacked and murdered by the accused persons. The said deceased Chikkayya is none other than the son of the accused No.1. It is alleged in the complaint that accused No.1 had illicit relationship with accused No.2. For the said reason, on two occasion, attempts were made to eliminate the deceased Chikkayya by his own father who is arrayed as accused No.1 in the charge sheet. Therefore, brother of the deceased filed a complaint before Banahatti Police. Based on the said complaint, a case :3: came to be registered in Crime No.98/2017. Thereafter investigation was conducted and Investigating Officer laid charge sheet against the accused for the offences stated supra.
4. Learned counsel for the petitioner submits that CW-18 has not named this petitioner in his first statement. It is only when this petitioner was arrested and shown to CW-18, without conducting test identification parade, CW- 18 identified the petitioner. Further, neither in the complaint nor in the FIR the name of this petitioner finds place. He further submits that petitioner is ready to abide by any conditions imposed by this Court. Moreover, accused Nos.1, 2 16, 17, 18, 20, 25, 26 and 27 are enlarged on bail granted by this Court and the copies of the same are produced in this petition. Therefore, he prays that on the ground of parity, this petitioner is entitled for relief of bail.
5. Learned H.C.G.P. for the state opposing the petition contends that accused have assaulted the deceased with deadly weapons. The accused No.1 entered into conspiracy with other accused including the petitioner :4: in order to eliminate his own son i.e., deceased Chikkayya who was coming in the way of illicit relationship of his father and accused No.2. The overt act attributed against this petitioner is that at the time of incident, he has thrown chilly powder on the face of the deceased Chikkayya. Therefore, he prays for dismissal of the petition.
6. Having regard to the facts it is relevant to state that there was animosity between the deceased and accused No.1 as there was illicit relationship between accused No.1 and Sumangala being an accused No.2. Accused No.1 who is the father of the deceased was running a Mutt by name Basavagopal Neel Manik Mutt at Bandigani. It is stated in the complaint averments that in order to eliminate the deceased Chikkayya, accused No.1 entered into conspiracy with other accused persons. On 30.09.2017 at 8.00 a.m. when the deceased was returning from the temple along with CW-18 on his motorcycle, accused Nos.21 and 23, who is petitioner herein have intercepted him near the lands of Basavaraj Naik-CW19 and petitioner/accused No.23 threw chilly power on the face of the deceased. When he got down from the :5: motorcycle and tried to escape, accused Nos.16, 17, 18, 20, 25, 26 and 27 surrounded him, accused Nos.12, 13, 14, 15, 19 and 21 assaulted him with choppers and cut off his limbs. The deceased died on the spot. It is submitted that this petition is a successive petition. Therefore, it is relevant to rely on a judgment of the Apex Court in the case of Babusingh and Others Vs. The State of Uttar Pradesh reported in AIR 1978 PAGE 527. The relevant paragraph reads as under:
"2. Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail. Right at the beginning we must mention that, at an earlier stage, their application for bail was rejected by this Court on September 7, 1977. but 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 we surely must set store by this circumstances, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not overturing an earlier negation. In this view, we :6: entertain the application and evaluate the merits pro and con."
7. The reliance which is referred to in this bail petition is relating to successive bail petition filed by the accused for seeking relief of bail. Therefore, an order refusing an application for bail does not necessarily preclude another, on a later occasion giving more materials as well as further developments and different considerations. The counsel for the petitioner is urging the circumstances subsequent to the charge sheet laid against the accused, as the co-accused have already been granted bail by this Court by imposing certain conditions which is stated supra. The Investigating Officer after conducting investigation has laid charge sheet against the accused. The overt act attributed against this petitioner is that he has thrown chilly power on the face of the deceased to facilitate the other accused. Therefore, at this stage, it is said that it does not require for any detailed discussion, while considering the bail petition filed by the petitioner/accused No.23, as there are substance in the contention of the learned counsel for the petitioner seeking for the relief of bail. Whereas, learned HCGP submits that :7: if the accused is supposed to be released on bail, certainly he would come in the way of prosecution case and would destroy the evidence. This apprehension expressed by the learned HCPG, could be curtailed by imposing certain suitable conditions to safeguard the interest of the prosecution. Therefore, for the aforesaid reasons as well as under the circumstances of the case, I am of the considered opinion that the petitioner/accused No.23 deserves for the relief of bail. Accordingly, I proceed to pass the following:
ORDER The bail petition filed by the petitioner/accused No.23 under Section 439 of the Code of Criminal Procedure is hereby allowed, subject to the following conditions:
i) Petitioner shall execute a bond in a sum of Rs.2,00,000/- with a likesum surety to the satisfaction of the trial Court in C.C.No.4/2018 arises out of Crime No.98/2017 of Banahatti Police Station.
ii) Petitioner shall appear before the concerned Court on all the dates of hearing without fail.:8:
iii) Petitioner shall not tamper or hamper the case of prosecution witnesses.
iv) Petitioner shall not indulge with any other criminal activities henceforth.
If the petitioner/accused No.23 violates any of the above conditions, the bail order shall automatically stands ceased.
SD/-
JUDGE Naa