Karnataka High Court
Davood Nadaf S/O Davalsab Nadaf vs State Of Karnataka on 20 September, 2019
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRL. P. NO. 101723/2019
BETWEEN:
1. DAVOOD NADAF,
S/O DAVALSAB NADAF,
R
AGED 26 YEARS, OCC.: BUSINESS,
RESIDENT OF ARALIKATTI COLONY,
MANTUR ROAD, HUBLI.
2. SHAROOQ BEPARI,
S/O RASULSAB BEPARI,
AGED ABOUT 23 YEARS,
OCC.: BUSINESS,
RESIDENT OF ARALIKATTI COLONY,
MANTUR ROAD, HUBLI.
- PETITIONERS
(BY SRI RAVI B. NAIK, SENIOR COUNSEL FOR
SRI AVINASH M. ANGADI, ADVOCATE)
AND:
STATE OF KARNATAKA THROUGH
HUBLI TOWN POLICE STATION,
HUBLI, REP. BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
- RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK, GOVT. PLEADER)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. SEEKING TO ENLARGE THE PETITIONERS-ACCUSED
NOS.1 AND 2 ON REGULAR BAIL IN S.C. NO. 65/2019 (CRIME
NO. 115/2018) PENDING ON THE FILE OF THE I ADDL. DIST. &
SESSIONS JUDGE, DHARWAD, SITTING AT HUBLI, REGISTERED
FOR THE OFFENCES PUNISHABLE U/S 143, 147, 148, 323, 324,
302 R/W SEC. 149 OF IPC & ETC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This is a petition filed by the accused nos.1 and 2 u/S 439 of Cr.P.C. seeking to enlarge them on bail in S.C. No. 65/2019 arose in Hubballi Town Police Station Crime No. 115/2015 registered for the offences punishable u/s 143, 147, 148, 323, 324, 302 r/w Sec. 149 of IPC, now pending on the file of the learned I Addl. Dist. & Sessions Judge, Dharwad, sitting at Hubballi. Since from the date of arrest the accused are in judicial custody. Therefore, the counsel is praying for enlarging them on regular bail, among the grounds urged therein.
2. The learned Senior Counsel, namely, Sri Ravi B. Naik, has placed the orders passed by the co-ordinate Bench of this 3 Court in Crl. P. No. 100339/2019 dated 12.03.2019 and in Crl. P. No. 101121/2019 dated 17.07.2019, wherein the co- accused are enlarged on bail. Therefore, this petition arise in Crime No. 115/2015, is not a successive bail petition but it is a fresh bail petition filed by them for seeking regular bail among the grounds urged therein.
3. The factual matrix of this petition are as under:
It is stated in the complaint that on 09.10.2018 at around 10 p.m. when the complainant, Altaf Ahmad Kanavi and Hussainsab Bapunavar were present and talking to each other, Imtiyaz Kanavi was also present nearby the bus stand on another two wheeler alleged to have been used by them, at that time, all of a sudden that the person being the accused in the alleged crime started to assault Imtiyaz Kanavi with means of weapons in which they had brought. On seeing the incident, the complainant and others went to rescue Imtiyaz Kanavi from the clutches of the culprits, but all the accused persons took heel from there. The same has been stated in 4 the complaint filed by the complainant before the respondent Police but the injured Imtiyaz Kanavi last his breath. It is based upon the complaint, crime came to be registered. Thereafter, the case has been taken up for investigation by the investigating officer and laid the charge sheet against the accused in S.C. No. 69/2018 wherein the accused are required to be facing of the trial for the alleged offences.
4. The learned Senior counsel, namely, Sri Ravi B. Naik, for the petitioners during the course of his arguments has taken me through the averments made in the complaint filed by the complainant that the accused have committed the alleged offences much less the offences alleged in the charge sheet laid by the Investigating Officer. But, the co-accused have already been granted bail by the Co-ordinate Bench of this Court by imposing certain conditions. As those accused as well as these accused are on similar footing, learned counsel for the petitioners prayed to extend the principles of parity for consideration of bail petition filed by these 5 petitioners/ accused. Initially, the complaint came to be filed by the complainant before the respondent Police alleging that all the accused said to have attacked the deceased Imtiyaz with deadly weapons, but the Investigating Officer has recovered only two knives, which are said to be used by the accused. At the time of incident, these petitioners being arraigned as accused Nos. 1 and 2, but the investigating authority failed to recover the remaining weapons alleged to have been used by the accused for committing the alleged offences, this discrepancy, which is enough to consider the bail petition filed by the petitioners/accused and also consideration of principle of parity to these accused, as where the co-accused Nos.3 and 4 have already been granted bail by the Co-ordinate Bench of this Court. Lastly the learned counsel is submitting that, even the voluntary statements made by the accused persons before the Investigating Officer during the course of investigation, cannot be relied upon as an evidence and the same have to be recorded only under due process of law.
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5. It is further contended that the petitioners/ accused are innocent persons. The petitioners hail from the responsible families and also having respect in the eye of society. Petitioners are the only bread winners of their families to eke out their livelihood and if the petitioners are kept behind the bar for a longer period, the family members will be ruined in the society. The accused are ready to abide by any terms and conditions to be imposed by this Court in the event they are released on bail. These are all the contentions taken by the learned counsel for the petitioners seeking regular bail.
6. Per contra, the learned HCGP for the respondent-State, who has mainly contended on the charge sheet laid by the Investigating Officer against the accused. Accused No.2 namely Sharooq Bepai, who is said to be assaulted the deceased Imtiyaz with means of knife. Subsequently, accused No.1, who had also made a role by assaulting the deceased Imtiyaz with means of knife, the same has also been seen in the PM repot issued by the Doctor. The Doctor, who 7 conducted autopsy over the dead body opined that the victim died due to the injuries inflicted on the vital parts. Therefore, there was a role made by these petitioners in committing the alleged offences with means of knife said to have been used by the accused. The same has been seized by the Investigating Officer during the course of investigation. Therefore, it appears that there are prima facie materials against the accused and accordingly, the learned HCGP prayed to reject the bail petition, as the petitioners do not deserve for bail as sought for.
7. It is in this context of the contentions taken up by the learned counsel for the petitioners, so also the counter made by the learned HCGP for the State, it is relevant to refer that, it is well settled principle of law that at the time of consideration of application for bail, the Court must take into account certain factors, such as, the existence of prima facie case against the accused, the gravity of the allegations made against the accused, the position and status of the accused, 8 the likelihood of the accused fleeing away from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.
8. It is further relevant to refer that it is also well settled law that the Court must not go deep into the merits of the matter while considering the bail petition. The same has been observed by the Hon'ble Apex Court in the case of State of Orissa v/s. Mahimananda Mishra, reported in AIR 2019 SC 302. In this judgment the Hon'ble Apex Court has also been addressed relating to Section 439 of Cr.P.C., Court while deciding application for bail should not go deep into merits of the matter only prima facie case against the accused needs to be established.
9. In the instance petition co-accused Nos. 3 and 4 have already been granted bail. While considering the bail petition, the Co-ordinate Bench of this Court has gone through the materials secured by the Investigating Officer. The 9 Investigating Officer laid the charge sheet against the accused but these petitioner Nos. 1 and 2 being arraigned as accused Nos. 1 and 2, there was a role made by these accused to commit the alleged offences.
10. The P.M. report also been secured by the Investigating Officer, which reveals that accused No.2, who alleged to have stabbed with means of knife and the said knife has been snatched by the accused No.1 and in terms he was also assaulted on the person of the deceased Imatiyaz, but the materials have been secured by the Investigating Officer during the course of investigation and also found at the incident, from the accused, the Investigating Officer has seized the knife, which is said to have been used by the accused at the time of committing the alleged offences, but there was a quarrel in between the complainant's family members and these accused persons, the same has been reveals in the material secured by the Investigating Officer. Therefore, at this stage, it is said that it does not require any 10 detailed discussion, while considering the bail petition filed by the petitioners, whereas the co-accused Nos. 3 and 4 have already been granted bail by the Co-ordinate Bench of this Court by imposing suitable conditions. Therefore, it is said that the principles of parity be extended to these petitioners being arraigned as accused Nos. 1 and 2 for consideration of their bail petition.
11. The Investigating Officer has taken up investigation and thoroughly investigated the case by recording the statement of witnesses in all from C.Ws.1 to 25. During investigation the investigating officer has conducted spot mahazar and so also the seizure mahazar for having seized the deadly weapons like knives said to have been used by the accused for committing murder of Imtiyaz. Dead body has been sent to KIMS Hospital, Hubballi for conducting postmortem over the dead body. Subsequently, the PM report was also collected by the Investigating Officer and the same has been included in the charge sheet.
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12. Whereas in the instant case, it is relevant to state that the co-accused Nos.3 and 4 have already been released on bail by imposing suitable conditions by co-ordinate Bench of this Court. This contention is taken by the learned senior counsel, namely, Sri.Ravi B. Naik for the petitioners. The materials in which secured by the investigating officer during the course of investigation to lay the charge sheet are enough materials but the materials in which collected by the investigating officer relating to the petitioners herein, it is said that it is not enough materials to decline the relief of bail. The overt alleged against each of the accused shall be tested during trial by the trial Court in order to establish guilt against each of the accused. Therefore, it is said that these accused were also facing of the trial with the co-accused Nos.3 and 4.
13. Even at a cursory glance of the materials in which collected by the investigating officer during the course of the investigation in order to laying the charge sheet, to lay charge 12 sheet consisting statement of witnesses, seizure mahazar and spot mahazar, said to have been conducted by the I.O. and so also the inquest proceedings held over the dead body of the deceased. During inquest recorded the statement of witnesses and so also noticed the injuries inflicted on the person of the deceased and similarly the injuries were reflected in the postmortem report issued by the Doctor. Therefore, it is said that, at this stage it does not require any detailed discussion while considering the bail petition filed by the accused.
14. Whereas, the learned HCGP submits that if the petitioners are supposed to be released on bail, certainly they would come in the way of prosecution case and would destroy the evidence. As this apprehension expressed by the learned HCGP, 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 13 the petitioners are deserving for bail. Accordingly, I proceed to pass the following:
ORDER The bail petition filed by the petitioners under Section 439 of the Code of Criminal Procedure is hereby allowed, subject to the following conditions:
(1) The petitioners shall execute a bond in a sum of Rs.2,00,000/- each with likesum sureties to the satisfaction of the court below as where the case in S.C.No.65/2019 is pending relating to the case in Hubballi Town Police Station Crime No.115/2018.
(2) The petitioners shall not tamper or hamper the case of prosecution witnesses.
(3) The petitioners shall not leave the jurisdiction of Dharwad District without prior permission of the competent Court.
(4) The petitioners shall mark their attendance once in a month as per the English Monthly Calendar in the first week on Sunday in between 10 AM and 5 pm before the 14 concerned SHO pending disposal of the entire case initiated against them.
(5) The petitioners shall appear before the court of law on all the dates of hearing without fail.
(6) The petitioners shall not indulge with any other criminal activities henceforth.
If the petitioners violate any of the above conditions, the bail order shall automatically stands ceased.
SD/-
JUDGE Bvv/vb