Karnataka High Court
Vijay Sen vs State By on 15 June, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.2054/2022
BETWEEN:
VIJAY SEN
S/O. LATE THARACHAND SEN
AGED ABOUT 33 YEARS
BAMBOKA MOHALLA, JAITERAN
OPP. TO SHIVAMANDIRA
PALI DISTRICT
RAJASTHAN-306 302. ... PETITIONER
(BY SRI CHETAN NAG S., ADVOCATE)
AND:
STATE BY
VIDYARANYAPURAM POLICE
STATION, MYSURU
REP. BY STATE PUBLIC PRSOECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001. ... RESPONDENT
(BY SRI MAHESH SHETTY, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.70/2021 REGISTERED BY VIDYARANYAPURAM POLICE
STATION, MYSURU (S.C.NO.3/2022 PENDING BEFORE THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU) FOR
THE OFFENCE P/U/S. 114, 115, 120(B), 216(A), 342, 394, 396,
2
399, 449 OF IPC AND SECTION 25, 25(1B), 27(1) OF INDIAN
ARMS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused No.6 in Crime No.70/2021 of Vidyaranyapuram Police Station, Mysuru City, for the offence punishable under Sections 114, 115, 120(B), 216(A), 342, 394, 396, 399 and 449 of IPC and Sections 25, 23(1B) and 27(1) of Indian Arms Act, 1959.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The factual matrix of the case of the prosecution is that the accused No.1 originally is a resident of Pashchima Bangala and he was residing at Mumbai and accused No.2 is a relative of Jhangir Alam Adbul Malik Shaik and he was addicted to bad vices. The accused No.1 along with accused Nos.2, 3, 4, 5 and 6, with an intention to commit dacoity at Amrutha Gold 3 and Silver Palace went to Bombay, wherein accused No.1 was staying and conspired with him and made preparation to commit dacoity at Neelakanta Jewelry Shop and trespassed the same and made an attempt. The accused Nos.2, 3, 4 and 5 also joined hands with the other accused to commit dacoity at Amrutha Gold and Silver Palace and accused No.12 fisted on C.W.1 and caused grievous injury and prevented him not to proceed further. The accused No.4, who brought the rope confined him and committed dacoity and took bangles in the bag and the same was done with the assistance of accused No.2 and accused No.3 was having pistol and live cartridges and shot the person, who was standing outside the jewelry shop and made an attempt to take away the life and accused No.1 shared the subject matter of dacoity i.e., gold ornaments and cash, while going to Hubli in National Travels Bus. The accused Nos.2, 3 and 5 went to Diva East Apartment and handed over cloth to accused No.5 and accused Nos.2 and 5 sold the same to C.W.49 and amount was transferred to their relatives and also to his wife account and planned to go to Mumbai in a flight and accused No.1 also transferred the amount to relatives and stayed in Om 4 Sai Grand Lodge. It is an allegation against this petitioner that he had also joined hands with accused Nos.1 to 5 and stayed in Om Sai Grand Lodge and CCTV footage is collected that they were making preparation to commit dacoity in the Neelakanta Jewelry shop. That on 28.08.2021, made preparation to commit dacoity at Neelakanta Jewelry Shop and accused No.1 along with accused Nos.2, 3, 4 and 7 went in an auto rickshaw belonging to C.W.134 and examined C.W.16, to whom the Neelakanta Jewelry Shop belongs and went inside his shop along with accused No.4 and when they failed to commit the offence at Neelakanta Jewelry Shop, went in an auto rickshaw belonging to C.W.19. That on 22.08.2021, in Ajantha Palace Lodge, accused No.1 along with accused Nos.2, 3, 4 and 7 gave instructions and role of each of the accused. In the CCTV footage of Amrutha Gold and Silver Palace, the same was recorded and accused No.1 fired the injured victim, Chandru and an attempt was made to take away his life and the same is also recorded in the CCTV-DVR. The specific allegation against this petitioner is that he is the resident of Rajasthan and accused No.9 was friend of him from last 10 to 12 years and a case was registered in Crime 5 No.122/2007 for the offence under Sections 399 and 402 of IPC an0d from 2017 to 2020, he was in Jail and came in contact with accused Nos.2 and 3. This petitioner was having the knowledge that accused No.2 was having pistol and cartridges and he returned to his native place on 18.08.2021 and accused No.9 got transferred the amount by way of phone-pe through C.W.10 and he was having contact with accused Nos.2, 3 and 9 after he had been to his native place. He identified the place for dacoity along with accused No.9 and accused No.6 was identified by Om Sai Grand Lodge Manager and Room Boy and Test Identification Parade was also conducted and apart from that, auto driver has also identified him.
4. Learned counsel for the petitioner would vehemently contend that this petitioner is in custody from 292 days and he was arrested on 28.08.2021 and there was no recovery at the instance of this petitioner and though he has been identified by witness, the only allegation against this petitioner is that, he scouted the other accused persons. The counsel would also submit that bail was granted in favour of accused No.9 by the 6 Trial Court itself and there are no other material to connect this petitioner, except the allegation of conspiracy and this petitioner was not at the spot on the date of commission of the offence.
5. Per contra, learned High Court Government Pleader for the respondent-State would submit that though he was not at the spot, he had identified the place for committing the offence of dacoity along with accused Nos.2 and 9 and stayed in a hotel and conspired with each other in hotel and C.W.12-Cab Driver has also identified this petitioner and they had been to Bombay on 16.08.2021 and conspired together and came back on 17th and made preparation to commit the offence and C.Ws.20 and 21 have also identified this petitioner. Hence, there is a prima facie case against this petitioner. The counsel would further submit that the accused Nos.1 to 6 have stayed in the same lodge on 17.08.2021 and he thereafter left to his native place and he was in constant touch with other accused persons.
6. Having heard the respective counsel and also on perusal of the material on record, this petitioner was arrested on 7 28.08.2021 and no incriminating materials were recovered at the instance of this petitioner. But, the allegation against this petitioner is that, he came and made preparation along with accused Nos.2 and 9 and he himself identified the jewelry shop to commit the offence of dacoity and stayed in a hotel along with other accused persons and the fact that he was in the lodge along with other accused persons is not in dispute since, the witness, C.W.21, who is a Room Boy and also the Manager of the lodge have also identified this petitioner. But, the fact is that he was not in the spot on the date of the incident. However, the allegation is that, he conspired with other accused persons and conspired at Bombay as well as in Bengaluru along with other accused persons. When he was not there along with other accused at the time of committing the offence and also no incriminating material recovered at the instance of this petitioner, merely because he was staying along with other accused prior to committing the offence on 23.08.2021 cannot be a basis to continue him in custody. In the absence of any recovery at the instance of this petitioner and he was also not present at the spot, whether he has conspired with other 8 accused persons and made preparation to commit dacoity prior to the incident has to be probed during the course of trial and no further custodial trial of the petitioner is required. The very contention of the learned High Court Government Pleader that he is having criminal antecedents outside the State is not a ground to reject this bail petition. Hence, it is a fit case to exercise the powers under Section 439 of Cr.P.C., subject to imposing certain conditions to protect and safeguard the interest of the prosecution. Hence, I pass the following:-
ORDER The Petition is allowed. Consequently, the petitioner/accused No.6 shall be released on bail in Crime No.70/2021 of Vidyaranyapuram Police Station, Mysuru City, for the offence punishable under Sections 114, 115, 120(B), 216(A), 342, 394, 396, 399 and 449 of IPC and Sections 25, 23(1B) and 27(1) of Indian Arms Act, 1959, subject to the following conditions:
(i) The petitioner shall execute personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs 9 only) with two local sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court, till the case registered against him is disposed of.
Sd/-
JUDGE ST