Karnataka High Court
Mr. Syed Nahim @ Nahim vs State Of Karnataka on 18 February, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO. 7764/2021
BETWEEN:
MR. SYED NAHIM @ NAHIM
S/O MR. SYED BAKASH,
AGED ABOUT 23 YEARS
R/AT SAIDIYA MASJID, SADDIK LAYOUT
THANIANDRA MAIN ROAD
BANGALORE-560 077
... PETITIONER
(BY SRI. DEVENDRA E.H ADV. FOR
SRI. MOHAN KUMAR.D, ADVOCATE)
AND:
STATE OF KARNATAKA
SAMPIGEHALLI POLICE STATION
REP. BY SPP
BANGALORE-560 001
... RESPONDENT
(BY SRI R.D.RENUKARADHYA., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
S.C.NO.915/2021 (CR.NO.182/2020) OF SAMPIGEHALLI P.S.,
BANGALORE PENDING ON THE FILE OF THE ADDITIONAL CITY
CIIVL AND SESSIONS JUDGE, BANGALORE (CCH-69) FOR THE
OFFENCE P/U/S 143,144,147,148,341,302,120B, 201,149 OF
IPC.
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THIS CRIMINAL PETITION COMING ON FOR ORDERS
'THROUGH VIDEO CONFERENCE' THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner - accused No.7 on bail, in respect of Crime No.182/2020 registered by the Sampigehalli Police Station, Bengaluru City, for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 120(B), 201 R/w 149 of IPC.
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 on 11.12.2020, the complainant made an allegation that on the same day at 6.00 p.m., when the deceased was at 2nd Cross, Bharath Nagar, at that time, the accused persons came in auto rikshaw with deadly weapons and by forming an unlawful assembly had committed the murder of the deceased. Hence, the police have registered a case and investigated the 3 matter and filed charge sheet against the accused persons. CWs.4, 7, 8, 9, 10 and 11 are also eyewitnesses to the incident and recovery is also made.
4. Learned counsel appearing for the petitioner would submit that this Court had already granted bail in favour of accused Nos.8 to 11 and since the petitioner is also standing on the same footing, he may be enlarged on the bail as that of accused Nos.8 to 11. There are 11 accused persons and investigation has already been completed and charge sheet has been filed. Hence, the custodial interrogation of the petitioner is not required to investigate the matter and this petitioner has falsely implicated in the case and he has been in judicial custody since 18.12.2020. Hence, he may be enlarged on bail and he is ready to obey the conditions that may be imposed by this Court.
5. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that CWs 4, 7, 8, 9, 10 and 11 have categorically stated the overt acts of this petitioner are that the petitioner had tried to inflict the injuries on the chest of the deceased and when the victim tried to avoid 4 the blow, at that time, he has sustained injury to his head and hands and once again, he tried to inflict injuries on the chest of the deceased and when he tried to escape from the blow, at that time, he had sustained injury to the right side of his chest. The statement of these eye witnesses is consistent against the petitioner. Learned HCGP further also submits that this petitioner only drove the vehicle to spot along with other accused persons and all of them came with deadly weapons and mercilessly inflicted injuries on the deceased. As a result, the victim has sustained 37 injuries. The cause of death is also due to an account of multiple injuries sustained by the victim. Hence, there is a prima facie case against the petitioner. The very same autorikshaw, which drove by the petitioner to the spot and the weapons, which were used for committing the murder of the victim, were also recovered at his instance. Hence, there is a prima facie material against this petitioner.
6. Having heard the learned counsel appearing for the petitioner and also learned High Court Government Pleader appearing for the State and perusal of materials on record, it is 5 seen that the prosecution case is that when the deceased was at 2nd Cross, Bharath Nagar, at that time, all the assailants came in autorikshaw with deadly weapons and mercilessly inflicted injuries and committed the murder of the deceased. This incident is witnesses by CWs.4, 7, 8, 9, 10 and 11 and apart from that recovery is also made at the instance of this petitioner. The very allegation against this petitioner is that this petitioner only brought the assailants in the autorikshaw and drove the same and also he inflicted injuries with knife and also specific statement of eye witnesses clearly indicates that with an intention to take away the life, he tried to give blow on the chest of the victim and in this regard, when the victim tried to avoid of that blow, he had sustained injuries to his hands as well as his chest. The cause of death is also on account of multiple injuries sustained by the victim i.e., 37 injuries. The act of the assailants is nothing but blood thirsty. When such being the case, it is not a fit case to exercise the powers under Section 439 of Cr.P.C., only on the ground that he has been in judicial custody from last 1 1/2 years. When the offence of committing the murder of the deceased that too by causing multiple injuries (37 in number) 6 and this incident is witnessed by C.Ws, 4, 7, 8, 9, 10 and 11, is not a fit case for granting bail.
7. The learned counsel appearing for the petitioner also brought to the notice of this Court that accused Nos.8 to 11, who were standing on the same footing, have already been granted bail by the Co-ordinate Bench of this Court vide orders dated 31.07.2021 in Crl.P.No.4173/2021, dated 06.08.2021 in Crl.P.No.4512/2021, dated 24.08.2021 in Crl.P.No.5689/2021 and dated 22.12.2021 in Crl.P.No.9200/2021 and an observation is made that no recovery has been made at the instance of the petitioner and CW.4 overt acts alleged against this petitioner are that he took the knife belongs to the deceased and stabbed him and fled away from the spot. When the facts are that there is no any recovery made and also observing that accused Nos.8 to 11 have already been enlarged on bail by the co-ordinate bench of this Court, the Court may exercise the discretion to enlarge the petitioner on bail.
8. But, the factual aspects and allegations levelled against this petitioner are that there are overt acts attributed against 7 this petitioner and recovery has also been made at the instance of this petitioner and hence, the same cannot be a precedent to enlarge this petitioner on bail. The Court has to take note of the gravity of the offence and seriousness of allegations made in the complaint as well as in the charge sheet and overt act.
9. The Co-ordinate Bench of this Court in petitions i.e., Crl.P.No.4173/2021 and Crl.P.5689/2021 had granted bail in favour of accused Nos.8 and 10 and also observed that admittedly, investigation is completed and charge sheet has filed and therefore, the detention of the accused in the custody would amounts to pre-trial punishment since the other accused who are similarly placed are enlarged on bail in other cases and an observation is made in respect of overt act allegations against accused Nos.8 to 11 is different from the other accused persons. Apart from that heinous offence of committing murder in furtherance of common object mercilessly inflicted injuries, as a result of the same, 37 injuries are occurred, when such being the case, this Court has to take note of the gravity and also seriousness of offence.
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10. The Hon'ble Apex Court in the judgment in Crl.A.No.571/2021 in the case of Kumer Singh vs. State of Rajasthan reported in AIR 2021(6) SCJ 227 has observed that "in a case of committing the murder with unlawful assembly in furtherance of common object, while canceling the bail granted by the High Court, the Hon'ble Apex Court in paragraph No.14 held that it is required to be noted that all the accused are charged for the offences punishable under Sections 302 and 307 R/w 149 of IPC, and also held that at this stage, the individual role of the accused is not required to be considered when they are alleged to have been the part of the unlawful assembly. The Hon'ble Apex Court has also further observed that there were 26 injuries found on the dead body of the deceased and 11 injuries on the injured Vikram Singh caused by blunt and sharp weapons. Therefore, merely because they were armed with weapons cannot be a ground to release them on bail and further observed that in circumstances of the case and considering the facts more particularly, the accused persons are charged for the offences punishable under Sections 302 and 307 R/w 149 IPC as well as Section 147 and 148 of IPC, this Court has to take note of the 9 gravity of offence and seriousness of allegations made in the charge sheet."
11. When the accused persons are part of unlawful assembly, the Court ought not to have exercise the discretion for granting bail. Having considered the principles laid down by the Hon'ble Apex Court in the judgment referred supra and even though the overt act is different in respect of each of the accused persons, but the same cannot be a ground to enlarge the petitioner on bail. Hence, the orders passed by the Co-ordinate Bench of this Court in exercising discretion in favour of accused Nos.8 to 11 will not come to aid of this petitioner when specific allegations are made against this petitioner. Hence, no grounds are made to enlarge the petitioner on bail.
12. In view of the discussions made above, the petition is rejected.
Sd/-
JUDGE NMS