Karnataka High Court
Syed Azharuddin vs State By Kalasipalya Ps on 7 October, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL PETITION No.4497/2020
BETWEEN:
SYED AZHARUDDIN
S/O SYED SIRAJUDDIN
AGED ABOUT 37 YEARS
R/AT 185/1, 9TH MAIN
1ST STAGE, 2ND BLOCK
HBR LAYOUT,
BANGALORE -560 043 ..PETITIONER
(BY SRI MOHAMMED TAHIR, ADVOCATE)
AND:
STATE BY KALASIPALYA PS
REPRESENTED BY STATE PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP. VIDHAN SOUDA
BANGALORE -560 001 ..RESPONDENT
(BY SRI.V.S.HEGDE, SPP-II)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
438 CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN THE EVENT OF HIS ARREST IN CR.NO.214/2019
REGISTERED BY KALASIPALYA POLICE STATION,
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BENGALURU FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 307 R/W 149 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
'THROUGH VIDEO CONFERENCE', THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The present petition is filed by petitioner- accused No.7 under Section 438 of Cr.P.C to release him on bail in the event of his arrest in Crime No.214/2019 of Kalasipalya police station (C.C.No.7174/2020) pending on the file of VIII ACMM Court, Bengaluru, for the offences punishable under Sections 120B, 341, 326, 307, 149 of IPC.
2. I have heard the learned counsel Sri.Mohammed Tahir for petitioner-accused No.7 virtually and Sri.V.S.Hegde, learned SPP -II for the respondent- State.
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3. The brief facts of the case of the prosecution are that:
"It is stated that the statement of the injured complainant -Varun was recorded at Victoria Hospital on 22.12.2019 wherein the injured has stated that on 22.12.2019 Sri.Tejaswi Surya, M.P. of Bangalore South had conducted a rally at Town Hall. It is stated that Varun had hired a Bounce two wheeler and had gone near the Town Hall and after attending the rally when he was returning to his home, near New Extension Kumbalagudu road, Reddy Building, 4 to 5 unknown persons had come on two wheelers and all of a sudden assaulted on his back side of head, back, left ribs by means of choppers and iron long and took heel from the spot. The injured did not even know why he was assaulted. However, as a result of the assault, he fell down and was screaming for help. Due to assault, he had sustained bleeding injuries and he was shifted to Victoria Hospital and 4 admitted as an inpatient in the said hospital".
4. It is the submission of the learned counsel for petitioner-accused No.7 that already accused Nos.1 to 6 have been released on bail by the Co-ordinate Bench and on the ground of parity petitioner-accused No.7 is also entitled to be released on bail. It is his further submission that the name of the petitioner- accused No.7 was not existing earlier and subsequently when further voluntary statement has been recorded on 19.01.2020 in respect of accused No.1 the name of the petitioner-accused No.7 has been inculcated in the charge sheet. It is further submission that main accused have been already enlarged on bail and no serious overt acts has been alleged as against the petitioner. Only allegation which has been made as per the charge sheet is that prior to the alleged incident other accused persons 5 have conspired in the house of the present petitioner. It is his further submission that The Unlawful Activities (Prevention) Act has not been incorporated in the charge sheet. Then under such circumstances said provisions are not applicable and petitioner-accused is entitled to be released on bail. It is his further submission that the said aspect has also been canvassed before the Co-ordinate Bench and the Co- ordinate Bench after considering all the facts has got released other accused persons. It is his further submission that the objections raised in the objection statement filed by the learned SPP-II are not sustainable and they are not factual matrix of the case on hand and petitioner is ready to abide by the conditions that may be imposed by this court and ready to offer surety. On these grounds he prayed to allow the petition and to release the petitioner- 6 accused No.7 on anticipatory bail in the event of his arrest.
5. Per contra learned SPP-II vehemently argued and submitted that in view of the provisions of Section 43D(4) of The Unlawful Activities (Prevention) Act, the present petition filed under Section 438 of Cr.P.C is not maintainable and petition is liable to be dismissed. It is his further submission that by order dated 28.03.2020 at the time of filing of charge sheet the investigating officer has sought permission to include The Unlawful Activities (Prevention) Act of 1967 and further investigation has been sought and the Hon'ble Court has also granted said permission to proceed with the said matter. Under the circumstances at this juncture it cannot be said that the provisions of The Unlawful Activities (Prevention) Act has not been applied. It is his further submission that the said 7 provision of law has not been brought during the course of arguments before the Co-ordinate Bench due to oversight. Due to non production of materials, the Co-ordinate Bench granted bail. It is his further submission that the said issue had come up before the Hon'ble Apex Court under similar circumstances how the bail application has to be appreciated has been discussed in the case of Anand Teltumbde Vs The State of Maharashtra and ors in Special Leave to Appeal (Criminal) No(s).1916/2020 and while upholding the said provision it has been held that petition is not maintainable. In that light it is his submission the present petition is not maintainable.
6. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records. The main contention raised by the learned SPP-II is that in view 8 of Section 43D(4) of The Unlawful Activities (Prevention) Act the present petition is not maintainable. For the purpose of brevity I quote the said provision:
Section 43D(4) reads as under:
"Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act."
7. On close reading of the said section there is a prohibition on the applicability of Section 438 Cr.P.C relating to the cases involving arrest of any person because of having committed said offence under The Unlawful Activities (Prevention) Act. This issue came in the case of Anand quoted supra and the Hon'ble Apex Court has observed as under:
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"We have not mentioned the facts in detail, as requested by the learned counsel for the petitioner(s).
However, we are satisfied that in view of the provisions contained in Section 43D(4) of the Unlawful Activities (Prevention) Act, 1967, which exclude the operation of Section 438 of the Cr.P.C. No case is made out to exercise the powers under Section 438 Cr.P.C. Section 43D(4) is extracted hereunder:-
"Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act."
We are of the opinion that it cannot be said that no prima facie case is made out.
The petitions cannot be said to be maintainable in view of the bar contained in 10 43D(4) of the Unlawful Activities (Prevention) Act, 1967. The special leave petitions are, accordingly, dismissed. However, since the protection has been enjoyed by the petitioners approximately for 1 ½ years, three weeks time from today is granted to them to surrender. The petitioners shall surrender their passport forthwith with the Investigation Agency/officer.
Pending application(s), if any, shall stand disposed of."
8. Though it is contended by learned counsel for petitioner-accused No.7 that the charge sheet material indicates that the petitioner-accused has been only charged for the offences punishable under Sections 120B, 341, 326, 307 and 149 of IPC, on perusal of the charge sheet at page No.25(A) the investigating officer has filed an application under Section 173(8) of 11 Cr.P.C to further investigate the case by invoking the provisions of The Unlawful Activities (Prevention) Act- 1967 and it is submitted by learned SPP-II that said permission is also granted by the court and that itself indicates that the said provision of The Unlawful Activities (Prevention) Act has been already applied and in that light in view of the above said provision i.e., Section 43D(4) of the Act, the petition under Section 438 of Cr.P.C is not maintainable. Petition is liable to be dismissed and accordingly it is dismissed.
Sd/-
JUDGE SBN