Karnataka High Court
Sri. Gopal S/O Vithal Hallur vs The State Of Karnataka on 22 April, 2019
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF APRIL 2019
BEFORE
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.200494/2019
C/W
CRIMINAL PETITION NO.200476/2019
In Crl.P.No.200494/2019
Between:
Sri Gopal
S/o Vithal Hallur
Age: 32 years, Occ: PSI
R/o Harugeri, Raibag Taluk
Belagavi District
Belagavi - 591 220
... Petitioner
(By Sri Ravi B. Naik, Sr. Advocate for
Sri Sanjay Kulkarni, Advocate)
And:
The State of Karnataka
Through Chadchan Police Station
Rep. by State Public Prosecutor
High Court of Karnataka
Kalaburagi - 585 103
... Respondent
(By Sri Prakash Yeli, Addl. SPP &
Sri Sanganabasava B. Patil, Advocate)
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This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to release the petitioner on bail in
(C.C.No.1375/2018) Crime No.171/2017 of Chadchan Police
Station, Dist. Vijayapur, for the offences punishable under
Sections 120(B) 143, 147, 166, 177, 182, 191, 192, 193,
195, 195(A), 199, 201, 202, 211, 220, 302, 452, 506 R/w
Sections 34 and 149 of IPC and Sections 25(1)(B) and 30 of
Indian Arms Act, pending before the Civil Judge and JMFC,
Indi.
In Crl.P.No.200476/2019
Between:
1. Sri Chandrashekar
S/o Laxman Jadhav
Age: 31 years, Occ: PC
Under suspension
R/o Horti, LT No.2, Indi Taluk
Vijayapura District - 586 101
2. Sri Sidharud @ Siddu
S/o Revappa Roogi
Age: 31 years, Occ: PC
Under suspension
Residing at Police Quarters
No.309, Chadachan
Behind Chadachan PS
Indi Taluk, Vijayapura - 586 101
... Petitioners
(By Sri Ravi B. Naik, Sr. Advocate for
Sri Sanjay Kulkarni, Advocate)
And:
The State of Karnataka
Through Chadchan Police Station
Rep. by State Public Prosecutor
3
High Court of Karnataka
Kalaburagi - 585 103
... Respondent
(By Sri Prakash Yeli, Addl. SPP &
Sri Sanganabasava B. Patil, Advocate)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioner on bail in Crime
No.171/2017 (C.C.No.1375/2018) of Chadchan Police
Station for the offences punishable under Sections 120(B)
143, 147, 166, 177, 182, 191, 192, 193, 195, 195(A), 199,
201, 202, 211, 220, 302, 452, 506 R/w Sections 34 and 149
of IPC and Sections 25(1)(B) and 30 of Indian Arms Act,
pending before the Civil Judge and JMFC, Indi.
These petitions coming on for Orders this day, the
Court made the following:
ORDER
The petition in Criminal Petition No.200494/2019 is filed by accused No.2 viz., Gopal S/o Vithal Hallur and the petition in Criminal Petition No.200476/2019 is filed by accused Nos.12 and 13 viz., Chandrashekar S/o Laxman Jadhav and Sidharud @ Siddu S/o Revappa Roogi respectively under Section 439 of Cr.P.C., seeking regular bail in Crime No.171/2017 of Chadchan Police Station, for the alleged offences punishable under 4 Sections 307, 333, 353, 504 and 506 of IPC, besides Sections 25 to 27 of Indian Arms Act.
2. Factual matrix of the petitions are as under:
It is transpired in the complaint that after getting credible information that one Dharmaraj Chadachan has in possession of country made pistol i.e., fire arms and he has been making use of those fire arms for the purpose of committing the crimes, the police team went to his village on 30.10.2017 in the morning hours and conducted a raid. At that point of time, the said Dharmaraj Chadachan was attempted to do away with the life of the Sub-Inspector of Police of Chadachan Police Station, who was heading the raiding team, by firing at him with a country made pistol, causing serious injury. The said Dharmaraj Chadachan opened fire at an informant, who was a member of the raiding team. At that time, not only to save his life, but also to save the lives of the other members of the raiding team, 5 the P.S.I. opened fire at Dharmaraj Chadachan. Due to which, the said Dharmaraj Chadachan was hit by a bullet and sustained an injury. Immediately, he has been shifted in an Ambulance to the Government Hospital at Chadachan for treatment of the bullet injury sustained by him. Thereafter, for better treatment, he has been shifted to B.L.D.E. Hospital at Vijayapura, where he was declared as brought dead. Subsequently, a complaint came to be filed by one Anil Doddamani, a police Constable attached to Chadachan Police Station, who is also a member of the raiding team. Based upon the said complaint, a case was registered in Crime No.171/2017 for the offences punishable under Sections 307, 333, 353, 504 and 506 of IPC, besides Sections 25 to 27 of the Indian Arms Act against the said Dharmaraj Chadachan. Subsequent to registration of the crime, the Investigation of the case was taken up by the Deputy Superintendent of Police, Vijayapura. During the course of investigation, the Investigating 6 Officer has recorded the statements of not only certain private persons, who are said to be the witnesses to what all that had transpired on the morning of 30.10.2017, but also the members of the raiding team, most of whom were police personnel, apart from the informants who had gone along with them. While the investigation is in progress, in pursuance of the directions issued by the District Magistrate, Vijayapura, the Assistant Commissioner/Sub-Divisional Executive Magistrate, Indi conducted an enquiry in relation to the death of Dharmaraj Chadachan, said to be the rowdy element in the shootout incident. During the course of the enquiry, the Assistant Commissioner/Sub-
Divisional Executive Magistrate, Indi, has not only recorded the statements of several witnesses including the statements of 19 police personnel who were aware of the things and whose names had figured in the police investigation as the one who would throw light into the matter, but collected and examined certain vital and 7 important documents and thereafter submitted a report to the District Magistrate, Vijayapura on 31.01.2018. In the report, the Assistant Commissioner/ Sub-Divisional Executive Magistrate, Indi, has stated that there was absolutely no motive whatsoever for the P.S.I to have shot at the deceased and that the P.S.I. shot at the deceased as a self defence to protect his life and also to protect the lives of the members of the raiding team.
It is further transpired that by 11.07.2018, the Deputy Superintendent of Police, Vijayapura, who was investigating into the case in Crime No.171/2017 had almost completed the investigation and for the reasons best known to him, which are inexplicable, submitted a report before the jurisdictional Magistrate with a request to record that six persons named by him in the report among others have a role to play in the death of Dharmaraj Chadachan and that he is continuing with the investigation of the crime for the offences that are 8 made penal under Sections 120-B, 193, 195-A, 203 and 302 of IPC against the six persons named in his report instead of offences under Sections 353, 333, 307, 504 and 506 of IPC, for which offences, the crime had been originally registered against Dharmaraj Chadachan on the basis of the complaint of Anil Doddamani, said to be the police constable. Subsequently, the investigation has been transferred to the C.I.D., Bangalore for further investigation. Accordingly, the Deputy Superintendent of Police, C.I.D., Bangalore took over the investigation and recorded the statements of several witnesses, whose statements had already been recorded by the earlier investigator. Thereafter, a final report has been filed before the concerned committal Court for the offences punishable under Sections 120-B, 143, 147, 166, 177, 182, 191, 192, 193, 195, 195(A), 199, 201, 202, 211, 220, 302, 452 and 506 R/w Sections 34 and 149 of IPC, besides Sections 25(1)(b) and 30 of the Indian Arms Act. In the final report filed by him, the Investigating Officer 9 has lugged the petitioners herein also as accused in the case on the premise that they have also played role in the death of Dharmaraj Chadachan. Subsequently, the Investigating Officer has laid the charge sheet before the concerned committal Court for the aforesaid offences, wherein the case in C.C.No.1375/2018 is pending.
3. Heard the learned senior counsel Sri Ravi B. Naik for the petitioners as well as the learned Additional State Public Prosecutor for the respondent-State and Sri Sanganabasava B. Patil, Advocate, who is permitted to assist the prosecution in both the cases.
4. Learned senior counsel for the petitioners Sri Ravi B. Naik during the course of arguments has contended that the petitioners are innocent of the alleged offences and they are falsely implicated in the alleged crime. It is submitted that the allegation made in the complaint, the charge sheet material, the statement of witnesses and the document appending 10 the charge sheet establishes the fact that the petitioners are falsely implicated in the alleged crime. The charge sheet reveals that the incident has taken place as stated by CW.1-Anil Doddamani in his complaint dated 30.10.2017 and not as falsely stated by him in the enquiry conducted by the Deputy Superintendent of Police on 29.07.2018. The case in Crime No.171/2017 is registered by the Chadachan Police in respect of Dharmaraj Chadachan on the basis of the complaint filed by one Anil Doddamani, wherein it is specifically stated that on receipt of information by the petitioner/accused viz., Gopal S/o Vithal Hallur being the PSI of Chadachan Police Station from Shivanand Biradar and Bhasha Sab Nadaf that Dharmaraj Chadachan was in possession of illegal and unlicensed fire arms, the petitioner along with the complainant-Anil and the Police Constables visited Konkanagaon village, where the deceased Dharmaraj Chadachan was residing in his house and on approaching the Dharmaraj, 11 enquired with him pertaining to the allegations against him, but the said Dharmaraj did not respond properly. Therefore, the PSI of Chadachan Police Station himself squatted in search of fire arms. At that time, Dharmaraj abused Shivanand Biradar and the PSI and removed a country made pistol which was hidden between the gunny bags and shot at the PSI behind the arm of the PSI and also extended life threat to him and Shivanand Biradar that he would not permit them to move away alive from his house. It is the case of the petitioner that when Shivanand Biradar was also shot by Dharmaraj Chadachan, the petitioner having no other alternate to defend the raiding team and also in his self-defense had to shoot at Dharmaraj from his official revolver. The PSI and Shivanand Biradar since had sustained grievous injuries were immediately shifted in a 108 Ambulance to Chadachan Government Hospital, where they were provided first aid. Subsequently, the petitioner/accused No.2 was shifted to Vijayapura B.L.D.E. Hospital for 12 better treatment, where the bullet was removed. Since the petitioner/accused No.2 had sustained grievous injury, as he had sustained fracture to his arm, he was shifted to Sparsh Hospital, Bengaluru for treatment, where he took treatment for more than one month as in inpatient. It is further contended that this fact has been enquired by the Assistant Commissioner/ Sub- Divisional Executive Magistrate, Indi, before whom the complainant-Anil Doddamani and the charge sheet witnesses had given a statement that the incident of shootout of Dharmaraj Chadachan was an act of self- defense by the PSI in order to save his life and also to save the lives of members of the raiding team led by him. However, the Investigating Officer has laid the charge sheet against the accused which consisting the statement of witnesses as well as the mahazar conducted by the Investigating Officer in the presence of panch witnesses. It is also submitted that the father of Dharmaraj Chadchan viz., Mallikarjun Chadachan is 13 absconding since 2006; he is a hardcore criminal, against whom there are more than fifty cases, which pertains to extortion, murder, robbery etc. The uncle of Dharmaraj viz., Srishail Chadachan was also a notorious criminal. The petitioners are in judicial custody since from the date of their arrest. Even though there are no direct overt-acts attributed against the petitioners in eliminating the deceased Dharmaraj Chadchan as narrated in the materials secured by the Investigating Officer during the course of investigation, the petitioners have been falsely implicated in this case. The father of accused No.2-Gopal Hallur is suffering from kidney stone problem, Diabetes and Hypertension. His mother is suffering from old age ailments. Therefore, he has to take care of them. Further he has to take care of his wife and minor son aged about 4 years. Similarly, accused Nos.12 and 13 also to take care of their aged and ailing parents. They have also to take care of their family consisting of wife and minor children. The 14 Investigating Officer has already laid the charge sheet against the accused. Therefore, the petitioners do not require to the Investigating Agency in further. It is further contended that co-accused Nos.14 and 15 have already been enlarged on bail by this Court in Criminal Petition No.200350/2019 by order dated 02.04.2019. Those accused as well as these petitioners are standing on the similar footing in respect of the allegations made in the charge sheet. Therefore, the principle of parity be extended to these petitioners also to consider their bail petitions. The petitioners are ready to abide by any conditions to be imposed by this Court while granting bail to them. On these grounds, the learned counsel for the petitioners in both the cases prays for enlarging the petitioners on bail.
5. The learned Addl. State Public Prosecutor for the State has filed common written objection to the petitions wherein the complaint averments reiterated 15 and has taken me through the averments made in the complaint filed by complainant-Anil Doddamani, who is a Police Constable and based upon his complaint, a case in Crime No.171/2017 came to be registered for the aforesaid offences. He further contended that C.Ws.1, 3 to 6, 8, 52 to 57 being the witnesses, in their statements they have stated relating to infliction of injuries and also retaliation taken place in between P.S.I. of Chadachan Police Station, who led the team consisting of Police Constables and the deceased Dharmaraj Chadachan, who was shot dead in a shootout incident, which is narrated in the charge sheet, laid by the investigation officer against the accused. It is further contended that subsequent to registration of the case, the investigation officer taken up the case for investigation and thereafter since the case involved is a shootout case, the Assistant Commissioner/Sub-Divisional Executive Magistrate, Indi has taken up the case for enquiry and during the 16 investigation, he has secured the material documents so also recorded the statement of witnesses relating to the death of deceased Dharmaraj Chadachan, a rowdy element, therefore it is contended that there are prima facie materials against the petitioners as they have played a role in eliminating the deceased Dharmaraj Chadachan because he was a rowdy element. It is further contended that C.Ws.1, 52 to 57 are the eyewitness and they have given statements as contemplated under Section 164 of Cr.P.C., wherein they have stated regarding these petitioners who said to be involved in a fake encounter of the deceased- Dharmaraj Chadachan.
6. Learned Addl. State Public Prosecutor in support of his contention in the objection statement relies on a decision of the Hon'ble Apex Court in the case of LT COL. Prasad Shrikanth Purohit Vs. State of Maharashtra reported in (2018) 2 SCC (Cri) 661 17 whereunder Head Note-B, it is held that Sections 437 and 439 of Cr.P.C.-Bail in a non-bailable offences- Proper exercise of discretionary power to be exercised properly while considering the bail petition. It is further contended that in the case on hand, petitioners have opened the fire at the deceased-Dharmaraj Chadachan, who sustained bullet injuries, due to which he lost his breath while shifting to the B.L.D.E. Hospital from Government Hospital, Chadachan. With these contentions, he submits that there are prima facie material against these petitioners that they have played a role in the form of fake encounter in eliminating the deceased-Dharmaraj Chadachan, who was a rowdy sheeter and contends that, if the petitioners are released on bail, certainly there shall be an adverse impact on the society. These are all the grounds urged by the learned Addl. State Public Prosecutor for the State and seeking for dismissal of the bail petitions as the petitioners do not deserving for bail.
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7. Keeping in view of all the strenuous contention as taken by the learned senior counsel for the petitioners so also learned Addl. State Public Prosecutor for the State relating to the case in Crime No.171/2017, which is in respect of shoot out incident of deceased-Dharmaraj Chadachan are concerned, it is relevant to state insofar as consideration of bail petitions filed by the petitioners/accused Nos.2, 12 and 13 and it require to be looked into whether these petitioners said to be involved in the crime directly or indirectly in eliminating the deceased-Dharmaraj Chadachan. In the instant case, P.S.I. of Chadachan P.S., who led the team consisting of police officials had been to the village of Dharmaraj Chadachan in order to make enquiry with regard to he possessing some illegal fire arms without having any licence. The P.S.I. of Chadachan P.S., enquired with Dharmaraj Chdachan pertaining to the allegations against him, but the said Dharmaraj did not respond properly. Therefore, the 19 P.S.I. of Chadachan Police Station himself squatted in search of fire arms. At that time, Dharmaraj abused Shivanand Biradar and the P.S.I. and removed a country made pistol which was hidden between the gunny bags and shot at the P.S.I. behind the arm of the P.S.I. and also extended life threat to him and Shivanand Biradar that he would not permit them to move away alive from his house. Shivanand Biradar was also shot by Dharmaraj Chadachan, as such, the P.S.I. of Chadachan P.S. having no other alternate to defend the raiding team and also in his self-defense had to shoot at Dharmaraj from his official revolver. The P.S.I. and Shivanand Biradar since had sustained grievous injuries and they were immediately shifted in a 108 Ambulance to Chadachan Government Hospital, where they were provided first aid. Subsequently, the petitioner/accused No.2 was shifted to Vijayapura B.L.D.E. Hospital for better treatment, where the bullet was removed. Since the petitioner/accused No.2 had 20 sustained fracture to his arm, he was shifted to Sparsh Hospital, Bengaluru for further treatment, where he took treatment for more than one month as in inpatient. The Assistant Commissioner / Sub-Divisional Executive Magistrate, Indi Division had investigated the case and laid the report relating to the incident of encounter death of Dharmaraj Chadachan. Whereas the material secured by the investigation officer in order to lay the charge sheet against the accused for the aforesaid offences are concerned, it is relevant to state that the deceased-Dharmaraj Chadachan who enraged by the conduct of the P.S.I., Chadachan Police Station when asked him to remove the country made pistol which was hidden in a gunny bag. Further, it is relevant to state about the statement given by one Jagadev dated 28.06.2018, said to be recorded by the investigation officer during the course of investigation and the said witness stated in his statement that the team led by the P.S.I. of Chadachan P.S. was consisting of police 21 officials including one Shivanand Biradar, they have entered into the shed belongs to the Dharmaraj Chadachan, thereafter he heard the shooting sound and also screaming sound of Dharmaraj Chadachan. Even after lapse of two minutes, again heard the shooting sound from inside the shed. The said P.S.I-Gopal Hallur and Shivanand Biradar came out of the shed by sustaining injuries. But, the said Dharmaraj Chadachan had not come out from the shed. The said P.S.I-Gopal Hallur who was injured had been taken in the police jeep and shifted to B.L.D.E. Hospital, Vijayapur, so also the injured Dharmaraj Chadachan has also been shifted to hospital through 108 Ambulance for treatment. But, in the statement of Jagadev, it is revealed that he came to know that the said Dharmaraj Chadachan had last his breath at the scene of crime i.e., in the shed. Whereas, the statement of one Sachin given before the investigation officer on 28.06.2018, it reveals that P.S.I. of Chadachan P.S. and 22 other in all 7-8 Police Constables had come in their police jeep, in that team, P.S.I-Gopal Hallur was also there but he does not know the names of other raiding members. But, P.S.I. of Chadachan Police Station and other 2-3 Police Constables said to be the members in that team had come out from the shed belongs to the Dharmaraj Chadachan and heard the shoot out sound from the shed in all 4-5 times and also heard the screaming sound and he has not seen who are the persons have been shifted in 108 Ambulance. But, the charge sheet has been laid against the accused relating to the case in C.C.No.1375/2018 arose in Crime No.171/2017 of Chadachan P.S. Subsequently, the enquiry was made by the Assistant Commissioner /Sub-Divisional Executive Magistrate, Indi and submitted his report before the District Magistrate relating to the shoot out incident of Dharmaraj Chadachan. Even though the same has been taken up for investigation by the investigation officer in the rank 23 of Dy.S.P., Vijayapura, Sub-Division, but later on it has been transferred to the C.I.D., Bengaluru for further investigation and the charge sheet has been laid against the accused. The statement of the witnesses have been recorded by the investigation officer attached to the C.I.D., Bengaluru. The materials collected by the investigation officer during the course of the investigation, it is enough material for laying the charge sheet against the accused. But, the said materials which secured by investigation officer even though thorough investigation done by the C.I.D., Bengaluru, it is not enough material to decline the relief of bail as sought for by the petitioners. The crime came to be registered based upon the complaint filed by the complainant-Anil Doddamani, initially for the offence punishable under Sections 307, 333, 353, 504, 506 of IPC, besides Sections 25 to 27 of the Indian Arms Act. But, the charge sheet has been laid by the investigation officer for the offences punishable under Sections 120B, 24 143, 147, 166, 177, 182, 191, 192, 193, 195(A), 199, 201, 202, 211, 220, 302, 452 and 506 R/w Sections 34 and 149 of IPC, besides Section 25(1) (B) and 30 of the Indian Arms Act. However, the entire materials available on record in a charge sheet laid by the investigation officer and also infliction of injuries over the person of the deceased, the same has to be established by the prosecution during the course of the trial, it cannot be said that this stage whether it is self inflicted injury or any injuries over the person of the deceased is due to shoot out by the P.S.I. and his other team members. Though accused are required for facing of trial for the aforesaid offences lugged against them, at this stage, it is said that, it does not require any detailed discussion while considering the bail petition filed by the petitioners. However, the learned Additional State Public Prosecutor for the State who has emphatically submitted that, if the petitioners are supposed to be released on bail, certainly they would come in the way of 25 prosecution and would destroy the evidence, this expression expressed can be curtailed by imposing suitable conditions to safeguard the interest of the prosecution.
8. Therefore, for the aforesaid reasons, as well as under the facts and circumstances of the case, I am of the considered opinion that the petitioners/accused Nos.2, 12 and 13 are deserving for bail. Accordingly, I proceed to pass the following:
ORDER The bail petition filed by the petitioners/accused Nos.2, 12 and 13 under Section 439 of Cr.P.C., is hereby allowed subject to the following conditions;
1. The petitioners / accused Nos.2, 12, and 3 shall execute a personal bond in a sum of Rs.1,00,000/- each with one surety each for the likesum to the satisfaction of the concerned Court where the case in C.C.No.1375/2018 (arising out of Crime 26 No.171/2017) of Chadachan Police Station is pending;
2. The petitioners / accused Nos.2, 12, and 3 shall not hamper or tamper the prosecution witnesses;
3. The petitioners / accused Nos.2, 12, and 3 shall appear before the Court of law on all the dates of hearing without fail;
4. The petitioners / accused Nos.2, 12, and 3 shall not indulge in any criminal activities henceforth;
If the petitioners/accused Nos.2, 12, and 3 violate any of these conditions, the bail order shall automatically stands ceased.
SD/-
JUDGE LG/BL