Karnataka High Court
Mr Imran vs The State Of Karnataka on 26 August, 2021
Author: K.Natarajan
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION No.2557 OF 2021
CONNECTED WITH
CRIMINAL PETITION No.763 OF 2021,
CRIMINAL PETITION No.2555 OF 2021,
CRIMINAL PETITION No.2560 OF 2021,
CRIMINAL PETITION No.2564 OF 2021,
CRIMINAL PETITION No.2572 OF 2021
AND
CRIMINAL PETITION No.2580 OF 2021
IN CRL.P.No.2557 of 2021
BETWEEN
MR. IMRAN,
S/O. ABDUL LATHIFF,
AGED ABOUT 19 YEARS,
RESIDING AT JAMIYA MOHALLA,
10TH THOKUR, PADUPANAMBOOR VILLAGE,
MANGALORE CITY,
D.K. DISTRICT - 574 146.
... PETITIONER
(BY SRI BALAKRISHNA M.R., ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
BY MULKI POLICE STATION,
MANGALORE CITY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. MR. MOHAMMED RAZIM,
S/O. M.K. MOHAMMED,
2
AGED ABOUT 24 YEAS,
RESIDING AT HOUSE No.111/57,
DARGA ROAD, KARNAD, BAPPANADU,
MULKI - 574 154.
... RESPONDENTS
(BY SRI SANDESH CHOUTA, SENIOR ADVOCATE for
SRI S. SUNIL KUMAR, ADVOCATE for R-2;
SRI MAHESH SHETTY, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
CANCEL THE BAIL GRANTED TO THE RESPONDENT No.2 DATED
06.11.2020 UNDER SECTION 439 OF CODE OF CRIMINAL
PROCEDURE FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 114, 109, 120B, 341, 307 AND 302
READ WITH SECTION 149 OF THE INDIAN PENAL CODE IN
CRIME No.38/2020 DATED 05.06.2020, REGISTERED BY THE
RESPONDENT No.1 POLICE.
IN CRL.P.No.763 of 2021
BETWEEN
STATE OF KARNATAKA
THROUGH INSPECTOR OF POLICE,
MULKY POLICE STATION, MULKY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
... PETITIONER
(BY SRI MAHESH SHETTY, HCGP)
AND
BASHEER @ BASHEER HUSSAIN,
S/O. MAYYADI,
AGED ABOUT 39 YEARS,
RESIDING AT REETA MARIYA COMPOUND,
PAKSHIKERE, MANGALURU,
DAKSHINA KANNADA DISTRICT - 575 001.
... RESPONDENT
(BY SRI A.P. PULAKESHI, ADVOCATE)
3
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
CANCEL THE ORDER DATED 22.10.2020 PASSED IN
CRL.MISC.No.548/2020 ON THE FILE OF THE COURT OF VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU, GRANTING BAIL TO THE ACCUSED-RESPONDENT
IN CRIME No.38/2020 OF MULKY POLICE STATION,
REGISTERED ON 05.06.2020 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 147, 148, 341, 307, 302 AND 395
READ WITH SECTION 149 OF THE INDIAN PENAL CODE AND
DIRECT THAT THE ACCUSED/RESPONDENT BE ARRESTED AND
COMMITTED TO CUSTODY.
IN CRL.P.No.2555 of 2021
BETWEEN
MR. IMRAN,
S/O. ABDUL LATHIFF,
AGED ABOUT 19 YEARS,
RESIDING AT JAMIYA MOHALLA,
10TH THOKUR, PADUPANAMBOOR VILLAGE,
MANGALORE CITY,
D.K. DISTRICT - 574 146.
... PETITIONER
(BY SRI BALAKRISHNA M.R. & ASSTS., ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
BY MULKI POLICE STATION,
MANGALORE CITY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. MR. ABUBAKKAR SIDDIQ,
S/O. ISMAIL,
AGED ABOUT 28 YEARS,
RESIDING AT HOUSE No.2-198,
ABDUL MANZIL, BADA VILLAGE,
UCHILA, UDUPI,
4
D.K. DISTRICT - 574 106.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP for R-1;
SRI SUNIL KUMAR S., ADVOCATE for R-2.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
CANCEL THE BAIL GRANTED TO THE RESPONDENT No.2, DATED
07.12.2020 UNDER SECTION 439 OF THE CODE OF CRIMINAL
PROCEDURE, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 114, 109, 120B, 341, 307 AND 302
READ WITH SECTION 149 OF THE INDIAN PENAL CODE, IN
CRIME No.38/2020 DATED 05.06.2020 REGISTERED BY THE
RESPONDENT No.1 POLICE.
IN CRL.P.No.2560 of 2021
BETWEEN
MR. IMRAN,
S/O. ABDUL LATHIFF,
AGED ABOUT 19 YEARS,
RESIDING AT JAMIYA MOHALLA,
10TH THOKUR, PADUPANAMBOOR VILLAGE,
MANGALORE CITY,
D.K. DISTRICT - 574 146.
... PETITIONER
(BY SRI BALAKRISHNA M.R. AND ASSTS., ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
BY MULKI POLICE STATION,
MANGALORE CITY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. MR. BASHEER @ BASHEER HUSSAIN,
S/O. MAYYADI,
AGED ABOUT 39 YEARS,
RESIDING AT REETA MARIYA COMPOUND,
PAKSHIKERE, MANGALORE,
5
D.K. DISTRICT - 574 146.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP for R-1;
SRI A.P. PULAKESHI, ADVOCATE for R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
CANCEL THE BAIL GRANTED TO THE RESPONDENT No.2 DATED
22.10.2020 UNDER SECTION 439 OF CODE OF CRIMINAL
PROCEDURE BY THE VI ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K., MANGALURU, IN CRL.MISC.No.548/2020 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 114,
109, 120B, 341, 307 AND 302 READ WITH SECTION 149 OF
THE INDIAN PENAL CODE IN CRIME No.38/2020 DATED
05.06.2020 REGISTERED BY THE RESPONDENT No.1 POLICE.
IN CRL.P.No.2564 of 2021
BETWEEN
MR. IMRAN,
S/O. ABDUL LATHIFF,
AGED ABOUT 19 YEARS,
RESIDING AT JAMIYA MOHALLA,
10TH THOKUR, PADUPANAMBOOR VILLAGE,
MANGALORE CITY,
D.K. DISTRICT - 574 146.
... PETITIONER
(BY SRI BALAKRISHNA M.R. & ASSTS., ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY MULKI POLICE STATION,
MANGALORE CITY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. MR. MOHAMMED ASSEEM,
S/O. HAMZA,
AGED ABOUT 28 YEARS,
RESIDING AT D.No.11-65A,
6
DARGA ROAD, BAPPANADU VILLAGE,
MULKI, MANGALORE TALUK,
D.K. DISTRICT - 574 147.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP., for R-1;
SRI SUNIL KUMAR S., ADVOCATE for R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
CANCEL THE BAIL GRANTED TO THE RESPONDENT No.2 DATED
07.01.2021 UNDER SECTION 439 IN CRIME No.38/2020 OF
RESPONDENT POLICE STATION, OF THE CODE OF CRIMINAL
PROCEDURE FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 114, 109, 120B, 341, 307 AND 302
READ WITH SECTION 149 OF THE INDIAN PENAL CODE, IN
CRIME No.38/2020 DATED 05.06.2020 REGISTERED BY THE
RESPONDENT No.1 POLICE.
IN CRL.P.No.2572 of 2021
BETWEEN
MR. IMRAN,
S/O. ABDUL LATHIFF,
AGED ABOUT 19 YEARS,
RESIDING AT JAMIYA MOHALLA,
10TH THOKUR, PADUPANAMBOOR VILLAGE,
MANGALORE CITY,
D.K. DISTRICT - 574 146.
... PETITIONER
(BY SRI BALAKRISHNA M.R. & ASSTS., ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY MULKI POLICE STATION,
MANGALORE CITY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. MUHAMMED WAFA,
S/O. ABDUL RAZAK,
7
AGED ABOUT 29 YEARS,
RESIDING AT No.11/113/9,
ULLANJE, MENNABETTU,
KINNIGOLI, MANGALORE TALUK,
D.K. DISTRICT - 574 150.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP., for R-1;
SRI SUNIL KUMAR S., ADVOCATE for R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
CANCEL THE BAIL GRANTED TO THE RESPONDENT No.2 DATED
23.01.2021 UNDER SECTION 439 OF CODE OF CRIMINAL
PROCEDURE, BY THE VI ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K., MANGALURU, IN CRL.MISC.No.52/2021 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 114,
109, 120B, 341, 307 AND 302 READ WITH SECTION 149 OF
THE INDIAN PENAL CODE, IN CRIME No.38/2020 DATED
05.06.2020 REGISTERED BY THE RESPONDENT No.1 POLICE.
IN CRL.P.No.2580 of 2021
BETWEEN
MR. IMRAN,
S/O. ABDUL LATHIFF,
AGED ABOUT 19 YEARS,
RESIDING AT JAMIYA MOHALLA,
10TH THOKUR, PADUPANAMBOOR VILLAGE,
MANGALORE CITY,
D.K. DISTRICT - 574 146.
... PETITIONER
(BY SRI BALAKRISHNA M.R. & ASSTS., ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY MULKI POLICE STATION,
MANGALORE CITY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
8
2. MR. MAYYADDI @ NAVAZ,
S/O. ABDUL KADAR,
AGED ABOUT 29 YEARS,
RESIDING AT ISMAIL KASI HASANABBA,
DOOR No.2-153/74, KAPIKADU VILLAGE,
KOIKUDE, MANGALURU TALUK,
D.K. DISTRICT - 574 146.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP for R-1;
SRI B.S. PRASAD, AMICUS CURIAE for R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
CANCEL THE BAIL GRANTED TO THE RESPONDENT No.2 DATED
22.12.2020 IN CRL.MISC.No.729/2020 ON VI ADDITIONAL
DISTRICT AND SESSIONS JUDGE UNDER SECTION 438 OF THE
CODE OF CRIMINAL PROCEDURE FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 114, 109, 120B,
341, 307 AND 302 READ WITH SECTION 149 OF THE INDIAN
PENAL CODE IN CRIME No.38/2020 DATED 05.06.2020
REGISTERED BY THE RESPONDENT No.1 POLICE.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.08.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Criminal Petition Nos.2557/2021, 2555/2021,
2564/2021, 2572/2021, 2580/2021 and 2560/2021 are
filed by the defacto complainant under Section 439(2) of
the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.')
for cancellation of bail granted by the learned Sessions
Judges to accused Nos.7, 4, 3, 2, 10 and 9. Whereas,
Crl.P.No.763/2021 is filed by the State against accused
No.9 for granting bail in Crime No.38/2020 registered by
the Mulki Police Station for the offences punishable under
Sections 143, 147, 148, 341, 307, 302 and 395 read with
Section 149 of the Indian Penal Code, 1860 (for short
'IPC') and also Sections 120(B) and 114 of IPC.
2. Heard the arguments of learned counsel for the
petitioners/accused, learned High Court Government
Pleader for the State and Sri Sandesh Chouta, senior
advocate for respondent No.2 in Crl.P.Nos.2557/2021,
2555/2021, 2564/2021, 2572/2021 (Accused Nos.2, 3, 4
and 7). Though, respondent No.2 who is accused No.10 in
Crl.P.No.2580/2021 served, but unrepresented. Hence,
this Court has appointed Sri B.S. Prasad for respondent
No.2 through the Legal Services Committee.
Sri A.P. Pulakeshi, learned counsel appeared for accused
No.9 (respondent in Crl.P.No.763/2021).
3. The case of the prosecution is that one Imran
S/o Abdul Lathif filed a complaint to the Police on
05.06.2020. Initially the Police registered a case for the
offences punishable under Sections 143, 147, 148, 341,
307, 302 and 395 read with Section 149 of the Indian
Penal Code, 1860 (for short 'IPC') and after investigation
the Police have filed the charge-sheet by adding Sections
114, 109 and 120B of IPC alleging that accused No.1-
Davood Hakim and C.W.2-Badrul Muneer had serious
enmity between them. Hence, accused No.1 and other
accused have conspired with each other in order to
eliminate C.W.2 and in pursuant to the conspiracy, on
05.06.2020 in the evening when C.W.1-Imran i.e.,
complainant along with C.Ws.2 and 3, the injured persons
Badrul Muneer and Hiyaz were returning in their car
bearing registration No.MH-06-AB-7677 after having
transaction in the HDFC Bank, Mulki Branch, at about 4.00
p.m. to 4.05 p.m., near the service road, accused Nos.2 to
10 at the instance of accused No.1 in view of the
conspiracy, came near the car in the motorcycle,
intercepted the car of C.W.2 and accused Nos.2 and 3
abused C.W.2 in filthy language. Accused No.2
(respondent No.2 in Crl.P.No.2572/2021) assaulted C.W.2
and his companion with knife. Accused No.3 (respondent
No.2 in Crl.P.No.2564/2021) assaulted with wooden club.
Accused No.4 (respondent No.2 in Crl.P.No.2555/2021)
assaulted with soda bottle and accused No.7 (respondent
No.2 in Crl.P.No.2557/2021) assaulted C.W.2 with
concrete stone. At that time, when the deceased-Abdul
Lathif came there and accused No.6 pushed and pulled him
and all the accused persons chased Abdul Lathif and made
him to fall down on the ground near the entrance of the
HDFC Bank and the accused persons assaulted the
deceased with the deadly weapons. Consequently, Abdul
Lathif died on the spot. Upon receipt of the complaint, the
Police registered a case showing nine accused persons in
the FIR. Subsequently, the charge-sheet came to be filed
showing totally ten accused persons. Accused No.7 moved
a bail petition before the Sessions Judge in
Crl.Misc.No.590/2020, accused No.4 has filed a bail
petition in Crl.Misc.No.651/2020, accused No.3 has filed a
bail petition in Crl.Misc.No.768/2020, accused No.2 has
filed a bail petition in Crl.Misc.No.52/2021, accused No.10
has filed a bail petition in Crl.Misc.No.729/2020 and as the
bail petitions came to be allowed by the learned Sessions
Judges and as against granting of bail, the defacto
complainant is before this Court by filing these petitions for
cancellation of bail and Crl.P.No.763/2021 filed by the
State against accused No.9.
4. Accused No.1 has filed a bail petition before
this Court which came to be allowed in Crl.P.No.4331/2020
dated 21.09.2020 and the same is challenged before the
Hon'ble Supreme Court in Special Leave Petition
(CRIMINAL) No.7400/2021). Accused No.5 moved a bail
petition before this Court which came to be dismissed as
withdrawn in Crl.P.No.7848/2020 dated 18.03.2021.
5. Sri M.R. Balakrishna, learned counsel for the
petitioner has contended that the accused has committed
heinous offence of murder and also attempted to commit
murder of CWs.2 and 3 by brutally assaulting them. But
the learned Sessions Judge without giving any proper
reason has granted bail to the accused persons only
relying upon the order passed by this Court in favour of
accused No.1 who was not at all present on the spot at the
time of incident. He was granted bail only on the ground
that the allegation against him was conspiracy and
therefore, bail has been granted by a Co-ordinate Bench of
this Court. However, the same was challenged before the
Supreme Court by filing an SLP.
6. Learned counsel for the petitioner also
contended that there are four injuries sustained by CW.2
and eight injuries sustained by CW.3 apart from the death
caused to one person. All these aspects were completely
ignored by the learned Sessions Judge while granting bail.
Learned counsel has further contended that the incident
took place in the broad light in the public view in front of
the Bank. The entire incident has been captured by the
CCTV which is installed nearby the place. As per the post
mortem report, there were 13 injuries sustained by the
deceased and he died on the spot. CWs.2 and 3 were
admitted as inpatient for few days and thereafter, they
discharged from the hospital. All these aspects have been
completely ignored by the Sessions Court while granting
bail to the accused which is nothing but miscarriage of
justice. In support of his arguments, the learned counsel
for the petitioner has relied upon the judgments which are
as follows:
"1) Brij Nandan Jaiswal vs. Munna alias
Munna Jaiswal and Another reported in
(2009) 1 SCC 678 (relevant para 12)
2) Kalyan Chandra Sarkar vs. Rajesh
Ranjan alias Pappu Yadav and Another
reported in (2004) 7 SCC 528.
3) Puran v/s Rambilas and Another reported
in (2001) 6 SCC 338 (relevant Para head
note B, C, D, E, F).
4) Sonu v/s Sonu Yadav and Another in
Crl.A.No.377/2021 (relevant Para 11).
5) The State of Kerala v/s Mahesh in
Crl.A.No.343/2021 (relevant Para 22).
6) Sudha Singh v/s The State of Uttar
Pradesh and Another in
Crl.A.No.448/2021 (relevant Para 11 &
12).
7. Per contra, Sri Sandesh Chouta, learned senior
counsel appearing for the respondents has contended that
if at all the complainant is not satisfied with the reason
assigned by the Sessions Judge for granting bail, he could
have approached to the First Appellate Court for
cancellation of bail by filing an application under Section
439(2) of Cr.P.C. without exhausting the remedy, he
cannot directly approach this Court for cancellation of bail.
Learned senior counsel also argued that the very petitions
filed by the complainant for cancellation of bail is only after
knowing about the dismissal of the bail petition of accused
No.5 on 18.03.2021. The said petition was dismissed as
withdrawn. Therefore, these petitions have been filed for
canceling the bail and further contended that merely the
complainant has filed an application for cancellation of bail
of accused No.1 that itself is not a ground for cancellation
of bail of other accused persons. The anticipatory bail
granted by the High Court against accused Nos.6 and 8
has not been challenged by the complainant, but
challenged only the bail granted by the Sessions Judge to
accused Nos.7, 4, 3, 2 10 and 9 which is not correct. The
learned senior counsel also contended that the petition
under Section 439(2) of Cr.P.C., is not maintainable as
respondent No.2-accused persons have not misused the
liberty and conditions of the bail granted by the trial Court.
Granting of bail is totally discretion of relief. If at all the
petitioner once challenged the order, he can approach by
filing revision petition under Section 397 of Cr.P.C., for
quashing the same under Section 482 of Cr.P.C. and there
is no violation of any conditions of bail in order to cancel
the bail. Hence, prayed for dismissing the petition.
8. Learned senior counsel also contended that
CW.3 has filed a complaint against accused No.7 under
Section 506 of IPC that itself cannot be a ground to say
that accused No.7 has threatened the witness which
requires cancellation of bail. Learned counsel has also
relied upon the judgments as follows:
"1) Dolat Ram and Others vs. State of
Haryana reported in (1995) 1 SCC 349.
2) Kashmira Singh vs. Duman Singh
reported in (1996) 4 SCC 693.
3) Subhendu Mishra vs. Subrat Kumar
Mishra & Another reported in 2000 SCC
(Cri) 1508.
4) Mahant Chand Nath Yogi & Another vs.
State of Harayana reported in (2003) 1
SCC 326.
5) Samarendra Nath Bhattacharjee vs.
State of W.B. & Another reported in
(2004) 11 SCC 165.
6) Hazari Lal Das vs. State of West Bengal
and Another reported in (2009) 10 SCC
652.
7) Myakala Dharmarajam & Others vs.
State of Telangana & Another reported in
(2020) 2 SCC 743.
8) Prabhakar Tewari vs. State of Uttar
Pradesh and Another reported in (2020)
11 SCC 648.
9) State by Alur Police vs. Kumara reported
in 2016 SCC Online Kar 448.
10) Khajim vs. State of Karnataka reported
in 2019 SCC Online Kar 2642.
11) Miss. Anuradha Baliga vs. Sri.
Mangalpady Naresh Shenoy and Another
reported in ILR 2019 KAR 2922.
12) State of U.P. Through CBI vs. Amarmani
Tripathi reported in (2005) 8 SCC 21.
13) CBI, Hyderabad vs. Subramani
Gopalakrishnan and Another reported in
(2011) 5 SCC 296.
14) X vs. State of Telangana and Another
reported in (2018) 16 SCC 511.
15) Bhadresh Bipinbhai Sheth vs. State of
Gujarat and Another reported in (2016) 1
SCC 152.
16) Mir Altamash Ali vs. Mohd. Akbar &
Others in Crl.P.15927/2012, High Court
of Karnataka Dated 25/09/2012.
17) Mangesh Kaisare vs. The State of
Karnataka and Another in
Crl.P.3056/2014 and connected matters,
High Court of Karnataka dated
09/06/2014.
18) Directorate General of Central Excise vs.
N. Santhosh Kumar in Crl.P.7523/2017,
High Court of Karnataka dated
05/03/2018.
19) Umashankar vs. State of Karnataka and
Another in Crl.P.9215/2017, High Court
of Karnataka dated 23/04/2018.
9. Sri B.S. Prasad, learned counsel appearing for
accused No.10 has stated that there is no allegation
against accused No.10 and no overt act attributed against
him, except he was present on that spot. Of course,
Section 114 of IPC would attract for abetment. The trial
Court after considering the same has granted bail which
need not be cancelled.
10. Sri A.P. Pulakeshi, learned counsel for accused
No.9 also contended that the name of accused No.9 is not
mentioned in the complaint or in the FIR. Even in the
further statement, his name is not mentioned but in the
third statement, his name has been mentioned. There is
no test identification parade conducted to identify this
accused. The order passed by the trial Court is speaking
or reasoned order and accused has not misused the liberty
and has not violated the conditions. Hence, prayed for
rejecting the petition.
11. Learned High Court Government Pleader has
contended that accused No.9 is the main abettor. The
CCTV footage has covered the entire incident. There were
ten cases registered against accused No.9. If bail is
granted, he may commit similar offences. Hence, prayed
for cancellation of bail.
12. Having heard the arguments of learned counsel
for the parties and on perusal the records, the points that
arise for my consideration are:
"1. Whether the petitioner/complainant
can file the present petition under Section
439(2) of Cr.P.C., before this Court for
cancellation of bail without exhausting the
remedy before the Sessions Judge who granted
bail?
2. Whether the petitioner has made
out a ground for cancellation of bail granted by
the Sessions Judge against respondent
No.2/accused persons in the above said
cases?"
13. Sri Sandesh Chouta, learned Senior counsel
has argued that once the bail is granted by the Sessions
Judge under Section 439 of Cr.P.C., the
petitioner/complainant/State shall move an application
before the same Court under Section 439(2) of Cr.P.C. for
cancellation of bail. Then after exhausting the remedy,
they have to approach the High Court for cancellation of
bail. In this regard, learned senior counsel has relied upon
the judgments of the Co-ordinate Benches of this Court
unreported in Crl.P.No.15927/2012 dated 25.09.2012 and
Crl.P.No.3056/2014 and connected matters dated
09.06.2014, Crl.P.No.7523/2017 dated 05.03.2018 and
another case in Crl.P.No.9215/2017 dated 23.04.2018. The
Co-ordinate Benches of this Court have held that the
Sessions Court can also exercise the power to cancel the
bail, therefore, they shall approach the trial Court first and
then, they have to approach this Court for cancellation of
bail. In this regard, Sri M.R. Balakrishna, learned counsel
appearing for the petitioner has contended that the
provisions of Section 439(2) is a concurrent jurisdiction,
the power can also be exercised by the Sessions Judge as
well as the High Court. Such being the case, the petitioner
can directly approach this Court under Section 439(2) of
Cr.P.C. for cancellation of bail as this Court is a Higher
Court. It is worth to mention the provisions of Section
439(2) of Cr.P.C., which is as under:
"(2) A High Court or Court of Sessions may
direct that any person who has been
released on bail under this Chapter be
arrested and commit him to custody."
14. On bare reading of the provisions, it empowers
both Sessions Court as well as the High Court for canceling
the bail and committing the accused to the custody. The
Hon'ble Supreme Court in the case of Bhadresh
Bipinbhai Sheth stated supra has held at paragraph
No.25.6 as under:
"25.6. It is settled legal position that the court
which grants the bail also has the power to
cancel it. The discretion of grant or cancellation
of bail can be exercised either at the instance
of the accused, the Public Prosecutor or the
complainant, on finding new material or
circumstances at any point of time."
15. Learned counsel for the petitioner has also
relied upon the judgment in the case of Puran stated
supra at paragraph Nos.15 and 16 which is as under:
"15. Mr. Lalit next relied upon the authorities
in the cases of Usmanbhai Dawoodbhai Memon
v. State of Gujarat, Amar Nath v. State of
Haryana and India Pipe Fitting Co. v. Fakruddin
M.A. Baker. Relying on these he submitted that
an order granting bail was an interlocutory
order and the High Court could not exercise
powers under Section 482 of the Criminal
Procedure Code and thus could not cancel the
bail. Mr. Lalit submitted that Section 439 of the
Criminal Procedure Code gives the power of
cancellation of bail both to the Sessions Court
and the High Court. He submitted that thus the
High Court and the Sessions Court were
coordinate Courts under this Section. He
submitted that the High Court could not thus
sit in appeal or revision over an order of the
Court of Session. He submitted that under
Section 439(2), it is only the orders of the
Magistrate, which could be set aside by the
High Court or the Court of Session.
16. We see no substance in this submission.
In the hierarchy of courts, the High Court is
the superior court. A restrictive interpretation
which would have the effect of nullifying
Section 439(2) cannot be given. When Section
439(2) grants to the High Court the power to
cancel bail, it necessarily follows that such
powers can be exercised also in respect of
orders passed by the Court of Session. Of
course cancellation of bail has to be on
principles set out hereinabove and only in
appropriate cases."
16. In view of the principles laid down by the
Hon'ble Supreme Court in this case, the
petitioner/complainant/State may also directly move the
High Court for cancellation of bail under Section 439(2) of
Cr.P.C., even without exhausting the remedy before the
Sessions Court which has granted bail. Therefore, the
contention raised by the learned senior counsel is not
acceptable that the petitions are not maintainable without
exhausting the remedy before the Sessions Judge. In my
considered opinion, the Sessions Court which granted bail
can cancel the bail or the High Court can also exercise the
power for cancellation of bail without exhausting the
remedy before the Sessions Judge. Of course, the Court
shall consider the principles set out for the purpose of
cancellation of bail. Accordingly, I answer point No.1 in
favour of the petitioner.
17. As regards to the merits of the case for
canceling of bail, learned counsel for the petitioner has
relied upon the judgment of Hon'ble Supreme Court in the
case of Brij Nandan Jaiswal stated supra at paragraph
Nos.12 and 13 which is as under:
"12. It is now a settled law that complainant
can always question the order granting bail if
the said order is not validly passed. It is not as
if once a bail is granted by any court, the only
way is to get it cancelled on account of its
misuse. The bail order can be tested on merits
also. In our opinion, therefore, the complainant
could question the merits of the order granting
bail. However, we find from the order that no
reasons were given by the learned Judge while
granting the bail and it seems to have been
granted almost mechanically without
considering the pros and cons of the matter.
While granting bail, particularly in serious
cases like murder some reasons justifying the
grant are necessary.
13. Therefore, without expressing anything on
the merits of the bail application, we would
chose to set aside the order granting bail and
direct the High Court to decide the application
again. The accused shall immediately
surrender within one week from today. If he
does not surrender, a non-bailable warrant
shall be issued against him. After his
surrender, the bail application shall be
considered by the High Court again."
18. In another judgment in the case of Kalyan
Chandra Sarkar stated supra at paragraph Nos.11 and 18
reads as under:
"11. The law in regard to grant or refusal of
bail is very well settled. The Court granting bail
should exercise its discretion in a judicious
manner and not as a matter of course. Though
at the stage of granting bail a detailed
examination of evidence and elaborate
documentation of the merit of the case need
not be undertaken, there is a need to indicate
in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also before
granting bail; they are,
(a) The nature of accusation and the
severity of punishment in case of
conviction and the nature of
supporting evidence;
(b) Reasonable apprehension of
tampering with the witness or
apprehension of threat to the
complainant;
(c) Prima facie satisfaction of the
Court in support of the charge; (See
Ram Govind Upadhyay Vs. Sudarshan
Singh and Puran Vs. Rambilas.)
18. We agree that a conclusive finding in
regard to the points urged by both the sides is
not expected of the court considering a bail
application. Still one should not forget, as
observed by this Court in the case Puran Vs.
Rambilas:(SCC p.344, para 8)
"Giving reasons is different from
discussing merits or demerits. At the
stage of granting bail a detailed
examination of evidence and
elaborate documentation of the merits
of the case has not to be undertaken.
... That did not mean that whilst
granting bail some reasons for prima
facie concluding why bail was being
granted did not have to be indicated."
We respectfully agree with the above dictum of
this Court. We also feel that such expression of
prima facie reasons for granting bail is a
requirement of law in cases where such orders
on bail application are appealable, more so
because of the fact that the appellate court has
every right to know the basis for granting the
bail. Therefore, we are not in agreement with
argument addressed by the learned counsel for
the accused that the High Court was not
expected even to indicate a prima facie finding
on all points urged before it while granting bail,
more so in the background of the facts of this
case where on facts it is established that a
large number of witnesses who were examined
after the respondent was enlarged on bail had
turned hostile and there are complaints made
to the court as to the threats administered by
the respondent or his supporters to witnesses
in the case. In such circumstances, the Court
was duty-bound to apply its mind to the
allegations put forth by the investigating
agency and ought to have given at least a
prima facie finding in regard to these
allegations because they go to the very root of
the right of the accused to seek bail. The non-
consideration of these vital facts as to the
allegations of threat or inducement made to
the witnesses by the respondent during the
period he was on bail has vitiated the
conclusions arrived at by the High Court while
granting bail to the respondent. The other
ground apart from the ground of incarceration
which appealed to the High Court to grant bail
was the fact that a large number of witnesses
are yet to be examined and there is no
likelihood of the trial coming to an end in the
near future. As stated herein above, this
ground on the facts of this case is also not
sufficient either individually or coupled with the
period of incarceration to release the
respondent on bail because of the serious
allegations of tampering of the witnesses made
against the respondent."
19. Learned senior counsel for the respondents
and other learned counsel have relied upon the judgments
of the Hon'ble Supreme Court in the case of Amarmani
Tripathi stated supra wherein certain guidelines have
been issued, at paragraph No.17 which is as under:
"17. They also relied on the decision in
Samarendra Nath Bhattacharjee v. State of
W.B. where the above principle is reiterated.
The decisions in Dolat Ram and Bhattacharjee
cases relate to applications for cancellation of
bail and not appeals against orders granting
bail. In an application for cancellation, conduct
subsequent to release on bail and the
supervening circumstances alone are relevant.
But in an appeal against grant of bail, all
aspects that were relevant under Section 439
read with Section 437, continue to be relevant.
We, however, agree that while considering and
deciding appeals against grant of bail, where
the accused has been at large for a
considerable time, the post bail conduct and
supervening circumstances will also have to be
taken note of. But they are not the only
factors to be considered as in the case of
applications for cancellation of bail."
20. In another judgment in the case of
Subramani Gopalakrishnan and Another stated supra
at paragraph No.23 reads as under:
"23. It is also relevant to note that there is
difference between yardsticks for cancellation
of bail and appeal against the order granting
bail. Very cogent and overwhelming
circumstances are necessary for an order
directing the cancellation of bail already
granted. Generally speaking, the grounds for
cancellation of bail are, interference or attempt
to interfere with the due course of
administration of justice or evasion or attempt
to evade the due course of justice or abuse of
the concessions granted to the accused in any
manner. These are all only few illustrative
materials. The satisfaction of the Court on the
basis of the materials placed on record of the
possibility of the accused absconding is
another reason justifying the cancellation of
bail. In other words, bail once granted should
not be cancelled in a mechanical manner
without considering whether any supervening
circumstances have rendered it no longer
conducive to a fair trial to allow the accused to
retain his freedom by enjoying the concession
of bail during the trial."
21. In another judgment in the case of X vs. State
of Telangana and Another stated supra, the Hon'ble
Supreme Court has upheld by allowing the bail application
of the accused and has not inclined to cancel the bail. At
Paragraph Nos.9, 10 and 14 it has held as follows:
"9. During the course of the hearing, the
learned counsel appearing on behalf of the
complainant alleged before the Court that her
submissions in assailing the order of the High
Court deal with two facets namely:
(i) Whether the High Court was justified
in granting bail to the accused under Section
439;
(ii) Whether there are any supervening
circumstances which would warrant the
cancellation of the bail granted by the High
Court.
10. While the principles in regard to the
grant of bail under Section 439 are well
settled, we may note for the completeness of
the record, that reliance has been placed on
behalf of the appellant on the decisions of this
Court in Kanwar Singh Meena v. State of
Rajasthan, Neeru Yadav v. State of U.P. and
State of Bihar v. Rajballav Prasad.
14. In a consistent line of precedent this
Court has emphasised the distinction between
the rejection of bail in a non-bailable case at
the initial stage and the cancellation of bail
after it has been granted. In adverting to the
distinction, a Bench of two learned Judges of
this Court in Dolatram v. State of Haryana
observed that:(SCC pp.350-51, para 4)
"4. Rejection of a bail in a non-bailable
case at the initial stage and the cancellation of
bail so granted, have to be considered and
dealt with on different basis. Very cogent and
overwhelming circumstances are necessary for
an order directing the cancellation of the bail,
already granted. Generally speaking, the
grounds for cancellation of the bail, broadly
(illustrative and not exhaustive) are:
interference or attempt to interfere with the
due course of administration of justice or
evasion of attempt to evade the due course of
justice or abuse of the concession granted to
the accused in any manner. The satisfaction of
the court, on the basis of material placed on
the record of the possibility of the accused
absconding is yet another reason justifying the
cancellation of bail. However, bail once granted
should not be cancelled in a mechanical
manner without considering whether any
supervening circumstances have rendered it no
longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the
concession of bail during the trial".
22. Learned senior counsel for the respondents has
also relied upon the judgment of the Hon'ble Supreme
Court in the case of Dolat Ram and Others stated supra
wherein, at paragraph No.4, it is held as under:
"4. Rejection of bail in a non-bailable case at
the initial stage and the cancellation of bail so
granted, have to be considered and dealt with
on different basis. Very cogent and
overwhelming circumstances are necessary for
an order directing the cancellation of the bail,
already granted. Generally speaking, the
grounds for cancellation of bail, broadly
(illustrative and not exhaustive) are:
interference or attempt to interfere with the
due course of administration of Justice or
evasion or attempt to evade the due course of
justice or abuse of the concession granted to
the accused in any manner. The satisfaction of
the court, on the basis of material placed on
the record of the possibility of the accused
absconding is yet another reason justifying the
cancellation of bail. However, bail once granted
should not be cancelled in a mechanical
manner without considering whether any
supervening circumstances have rendered it no
longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the
concession of bail during the trial. These
principles, it appears, were lost sight of by the
High Court when it decided to cancel the bail,
already granted. The High Court it appears to
us overlooked the distinction of the factors
relevant for rejecting bail in a non-bailable case
in the first instance and the cancellation of bail
already granted."
23. Another judgment in the case of Kashmira
Singh stated supra, it has held at paragraph No.8 as
under:
"8. We have carefully examined the reasons
put forward by the learned Judge for directing
cancellation of the bail granted earlier. At the
outset, we must state that we doubt the
advisability of the learned Judge's decision to
treat the copy of a complaint made to the Chief
Minister against grant of bail as an application
for cancellation of the bail. Nothing had
stopped or prevented the respondent from
filing a regular application for cancellation of
bail if there existed valid grounds for the same.
We need say no more on this point because,
what is important is to find out if the learned
Judge was justified in cancelling the bail
granted on merits."
In this case, the Hon'ble Supreme Court has set
aside the order of High Court and accused was released on
bail as there was no evidence for having threatened any
witnesses while on bail.
24. Learned senior counsel has also relied upon the
judgment in the case of Subhendu Mishra stated supra
wherein, the Hon'ble Supreme Court has held that the High
Court shall not pass the order of cancellation in mechanical
manner.
25. Another judgment in the case of Mahant
Chand Nath Yogi stated supra has taken similar view
while canceling the bail.
26. Another judgment in the case of Samarendra
Nath Bhattacharjee stated supra at paragraph 14, it has
held as under:
"14. We have deliberately refrained from
expressing any opinion on various findings
given by the High Court, lest our opinion
should prejudice the trial, but we make it clear
that when the matter goes to trial the trial
court also will not take into consideration the
observation made by the High Court in the
impugned order."
27. In the case of Hazari Lal Das and in Myakala
Dharmarajam and Others, stated supra the Hon'ble
Supreme Court has also taken similar view. In the case of
Prabhakar Tewari stated supra, granting of bail by the
High Court has been upheld by the Supreme Court.
28. Another judgment in the case of State of Alur
Police vs. Kumara stated supra, the Co-ordinate Bench of
this Court has also considered the cancellation of bail by
relying upon the judgment of the Hon'ble Supreme Court
in the case of Dolat Ram stated supra and dismissed the
application for cancellation of bail.
29. In another judgment in the case of Khajim
stated supra, the Co-ordinate Bench of this Court has also
considered the similar situation and set aside the order of
cancellation of bail and granted bail. In another judgment
in the case of Miss Anuradha Baliga stated supra, the
Co-ordinate Bench of this Court has taken a similar view.
30. On perusal of the judgments of Hon'ble
Supreme Court especially cancellation of bail by the Courts
by exercising the power under Section 439(2) of Cr.P.C.,
and the guidelines issued by the Hon'ble Supreme Court
while considering such applications by keeping in mind the
guidelines and judgments of the Hon'ble Supreme Court as
the Court cannot cancel the bail mechanically, once the
bail is granted to the accused and it cannot be cancelled
without any proper reason.
31. Now coming to the case of the prosecution, on
the complaint of one Imran S/o. Abdul Lathif filed before
the Police on 5.6.2020 at 6.00 p.m., it is alleged by him
that on 5.6.2020 on the occasion of his brother Imran's
birthday, he has intimated to his friend Muneer about the
same. Then Muneer and his wife Mumtaj, his daughter
Mubina and his son-in-law Abdul Lathif and his son Hiyaz
all together came to the complainant's house in the
afternoon and had lunch. The complainant went to the
house of Muneer after dropping his wife and daughter to
the house and he accompanied Muneer to the Vijaya Bank
for releasing the pledged gold. He traveled in the car
bearing No.MH./AB.7677 which belongs to Muneer. The
complainant, Hiyaz and Abdul Lathif proceeded towards
the Bank but the complainant stayed back in the car itself.
Muneer, Hiyaz and Abdul Lathif went to the Bank and after
sometime, they came back near the car. When they were
about to leave that place, at that time, the accused Hakim
came in motorbike, intercepted the car and threatened
that he will show who he is and went away. Immediately,
within the span of time, Wafa, Asidath, Siddiq came along
with Nisar, Bava, Farhan and Razim all came to the spot in
their vehicles and another Ritz car also came and stopped
in front of their car. At about 3.45 p.m., they started
assaulting Nisar, Hiyaz on the head with soda bottle. Wafa
took out the knife and stabbed on the back of Hiyaz-
C.W.3. Then the complainant, Abdul Lathif and C.W.2
came for rescue and at that time, accused Nos.7, 5, 4 and
other accused persons surrounded them and started
assaulting with knife on the neck of C.W.2. Mohammed
Aseem-accused No.3 assaulted on the head of C.W.2 with
soda bottle and also chased the complainant and then
Bava and Farhan abused them in a filthy language and
threatened them. At that time, Muneer also came to the
spot and telephoned Rehman alias Imran Hamid and then
he also came to the spot. At that time, the accused
persons assaulted Abdul Lathif and caused injuries. Due to
the injuries sustained by Abdul Lathif, he fell down along
with CW.2. Immediately, they both were shifted to the
hospital and Abdul Lathif died on the way to the hospital.
Accordingly, after registering the complaint, the Police
arrested the accused persons including accused No.1 that
the murder was occurred due to the previous motive with
accused No.1. Hence, they committed the murder. The
Sessions Court has granted bail to respondent No.2 in
these cases which are under challenge.
32. Now the question that arises is whether the
Sessions Judge while granting bail has followed the
guidelines and given reason for granting bail in case of
murder that too occurred in presence of so many
witnesses under the broad light in front of the HDFC Bank.
32. Learned counsel for the petitioner has brought
to the notice of this Court that the Sessions Judge was not
at all given any reason for granting bail. On perusal of the
order, accused No.7 who is respondent No.2 in
Crl.P.No.2557/2021 has been granted bail by the Sessions
Judge in Crl.Misc.No.590/2020 wherein, the learned
Sessions Judge while accused No.1 has been enlarged on
bail by the High Court of Karnataka in Crl.P.No.4331/2020
and accused No.7 is also entitled for bail on the ground of
parity and role attributed against accused No.7 need to be
taken into consideration to ascertain whether the petitioner
is entitled for bail or not. No specific allegation has been
made by the complainant against accused No.7 and it is
alleged in the charge-sheet that the petitioner has pelted a
concrete stone on C.W.2 and C.W.3 and caused head
injury and in the investigation papers, there is a
contradiction and it should be considered only at the time
of trial in view of the order passed by this Court in favour
of accused No.1 in Crl.P.No.4331/2020 as well as
Cr.P.No.3902/2020. Accordingly, learned Sessions Judge
has stated that on the ground of parity, accused No.7 is
entitled for bail and he has been granted.
33. Crl.P.No.763/2021 is filed by the State against
the respondent-accused No.9 where the trial Court has
granted bail in Crl.Misc.No.548/2020 on 22.10.2020
stating that the name of the petitioner is not mentioned in
the complaint and his presence was not disclosed in the
FIR. But, it was mentioned in the further statement and
role of accused No.9 is that he was riding bike and accused
No.8 and another person sitting on the bike and no role
attributed to him. There is no serious allegation against
him. Hence, the bail is granted. Therefore, learned High
Court Government Pleader has stated that there is no
proper reason assigned by the trial Court while granting
bail to accused No.9 even though he was seen in the CCTV
footage collected by the Investigating Officer and in the
further statement, his overt act has been categorically
stated by eye-witnesses and the charge-sheet also reveals
his active participation in the commission of offence.
34. In Crl.P.No.2555/2021 filed by the complainant
against the bail order granted by accused No.4 in
Crl.Misc.No.651/2020 dated 7.12.2020 wherein, the trial
Court has stated that the role of accused No.4 that he
assaulted CWs.2 and 3 with soda bottle and accused
Nos.1, 7 and 8 are already granted bail by this Court and
Sessions Court. Therefore, on the ground of parity, the bail
has been granted stating that there is no sufficient
material placed by the prosecution for denying the bail to
accused No.4.
35. In Crl.P.No.2560/2021 filed by the complainant
against accused No.9 by taking similar contention for
setting aside the bail granted by the trial Court in
Crl.Misc.No.548/2020.
36. In Crl.P.No.2564/2021 filed against granting of
bail to accused No.3 wherein, the trial Court while granting
bail in Crl.Misc.No.768/2020 dated 07.01.2021 has passed
the order stating that the co-accused were granted bail by
the High Court and Sessions Court in
Crl.Misc.No.651/2020, 590/2020 and 548/2020 and
anticipatory bail to accused No.10 and accused No.3 is not
required for the purpose of investigation and the
involvement of the accused is the matter to be decided on
merits and hence, bail is granted. The same is under
challenge.
37. In Cr.P.No.2572/2021 is filed against granting
of bail to accused No.2 by the Sessions Judge in
Crl.Misc.No.52/2021 dated 23.01.2021. The Sessions
Judge has held that the co-accused are already granted
bail and accused No.2 is not required for any investigation
and the involvement of the accused is the matter to be
decided on merits. Therefore, bail is granted.
38. In Crl.P.No.2580/2021 already granted bail to
accused No.10 wherein, the Sessions Judge has granted
anticipatory bail in Crl.Misc.No.729/2020 stating that
accused No.10 was present on the spot and other accused
persons abetted and not accused No.10. Hence, the
Sessions Court granted anticipatory bail.
39. Perused the reasons assigned by the Sessions
Judges while granting bail to the accused persons. Most of
the orders are based upon the bail granted by the Co-
ordinate Bench of this Court on behalf of accused No.1 in
Crl.P.No.4331/2020 and on the ground of parity, the
Sessions Judges granted bail and most of the orders reveal
that the investigation is completed and the involvement of
the accused shall have to be decided during the trial.
40. It is pertinent to note that the Co-ordinate
Bench of this Court has granted bail to accused No.1-
Dawood Hakim in Crl.P.No.4331/2020 dated 21.09.2020
wherein, the allegation against accused No.1 is that the
other accused persons are henchmen of accused No.1 and
accused No.1 was not at all present on the spot. The
allegation against him is criminal conspiracy under Section
120(B) of IPC. The Co-ordinate Bench also held that the
CCTV footage collected by the prosecution would show the
presence of accused No.1 nowhere on the spot on the date
of incident. After considering the entire records as accused
No.1 was not at all participated in the offence while
assaulting CWs.2, 3 and the deceased, the Co-ordinate
Bench of this Court has granted bail.
41. On perusal of the charge-sheet material which
reveals that the accused No.2-Mohammed Wafa took out
the knife, accused No.5-Riyaz @ Nisar with bottle and
knife, accused No.3-Mohammed Asim with stick, accused
No.4-Abubakkar Siddiq with soda bottle, accused No.7 with
concrete stone have assaulted CWs.2 and 3 and the
deceased Abdul Lathif. By that time, accused No.4 came
there, then accused No.6-Mohammed Bava pushed Lathif
and the accused chased the deceased and in front of HDFC
Bank, they brutally committed murder with knife, soda
bottle, stick and concrete stone. Accused Nos.6, 9 and 10
were stood on the spot and instigated the other accused
not to leave the deceased and injured witnesses and
commit murder. But the trial Court while considering the
bail to the accused has not given proper reason while
granting bail to the accused persons/respondent No.2 in
these cases.
42. As per the submission made by the learned
counsel, the entire incident has been recorded in CCTV
camera which was installed near the place of incident and
there were 16 eye-witnesses including CWs.2 and 3, the
injured eye-witnesses. The same has not been properly
considered. On perusal of the impugned order of the bail
granted by the trial Court, no where the trial Court has
stated that the statements of the injured were looked into
while granting bail. The trial Court totally ignored the
statements of CWs.2 and 3 who are the injured eye-
witnesses and also CCTV capture of entire incident and
also the incident was occurred in broad light at about 4.00
p.m., in front of the HDFC Bank where huge gathering
were present. There were 14 eye-witnesses to the
incident. Apart from that, accused No.9 is also having 10
more cases against him in different Police Stations.
Accused No.7 is said to be threatened CW.20 where the
criminal cases has been registered and also registered FIR
by the Police on the private complaint filed by the witness
for the offence punishable under Section 506 of IPC which
reveals that accused No.7 has violated the conditions of
the bail by threatening the witness. The Hon'ble Supreme
Court in the recent judgment in the case of State of
Kerala vs. Mahesh in Crl.A.No.343/2021 (Arising out
of SLP (Crl.) No.1530 of 20121) after relying upon the
various judgments of the Hon'ble Supreme Court including
the case of Dolat Ram which is relied by the learned
senior counsel for the respondent, cancelled the bail. In
another judgment in the case of Sudha Singh stated
supra at paragraph Nos.11 and 12 which is as under:
"11. In Prasanta Kumar Sarkar vs. Ashis
Chatterjee and Another, it was held that this
Court ordinarily would not interfere with a High
Court's order granting or rejecting bail to an
accused. Nonetheless, it was equally
imperative for the High Court to exercise its
discretion judiciously, cautiously and strictly in
compliance with the ratio set by a catena of
decisions of this Court. The factors laid down
in the judgment were:
(i) Whether there was a prima facie or
reasonable ground to believe that the
accused had committed the offence:
(ii) nature and gravity of accusations;
(iii) severity of the punishment in the
event of a conviction.
(iv) danger of the accused absconding
or fleeing, if granted bail;
(v) character, behaviour, means,
position and standing of the accused;
(vi) likelihood of repetition of the
offence;
(vii) reasonable apprehension of the
witnesses being influenced; and
(viii) danger of justice being thwarted
by grant of bail.
12. There is no doubt that liberty is important,
even that of a person charged with crime but it
is important for the courts to recognize the
potential threat to the life and liberty of
victims/witnesses, if such accused is released
on bail."
In the said case, the Hon'ble Supreme Court
cancelled the bail granted by the Allahabad High Court.
Here in these cases, statement of the 14 eye-witnesses
and 2 injured eye-witnesses shows that there is prima
facie strong materials placed on record to show that the
accused have committed murder. The trial Court while
granting bail has not considered the nature and gravity of
the accusations, severity of the punishment in the event of
bail, likelihood of repetition of the offences and the
reasonable apprehension of the witnesses being
influenced. Therefore, the order of learned Sessions Judge
having granted bail is required to be cancelled as the
findings are perverse and the reason is insufficient for
granting bail. Hence, the offence under Section 302 of IPC
that is committing murder in public in broad light in
presence of so many persons which is nothing but a
terrorist activity and if they are granted bail, no public
would come forward to give the evidence before the Court
against the accused and also one of the accused was trying
to tamper the witnesses and the case has been registered.
Therefore, I am of the view that the bail granted to the
accused by learned Sessions Judge in
Crl.Misc.No.590/2020 challenged in Crl.P.No.2557/2021
against accused No.7, Crl.Misc.No.651/2020 challenged in
Crl.P.No.2555/2021 against accused No.4,
Crl.Misc.No.768/2020 challenged in Crl.P.No.2564/2021
against accused No.3, Crl.Misc.No.52/2021 challenged in
Crl.P.No.2572/2021 against accused No.2,
Crl.Misc.No.729/2020 challenged in Crl.P.No.2580/2021
against accused No.10 and Crl.Misc.No.548/2020
challenged in Crl.P.No.2560/2021 against accused No.9
and also Crl.P.No.763/2021 filed by the State against
accused No.9 requires to be cancelled.
43. This Court has already rejected the bail
application of accused No.5 as the case was withdrawn.
44. Though Sri B.S.Prasad, learned counsel
appearing for accused No.10 has contended that there is
no overt act. Except accused No.10 was present along with
other accused and instigated to commit murder which
attracts Section 114 of IPC equally punishable for the
offence under Section 302 of IPC. Therefore, the
contention of learned counsel for accused No.10 is not
acceptable that there is no case against him. Sections 143
and 149 of IPC are clear in common object of the accused
persons in committing murder along with the co-accused.
Therefore, the bail granted by the learned Sessions Judges
requires to be cancelled which are under challenge in these
petitions. Hence, I pass the following
ORDER
All the Criminal Petitions are allowed.
The bail granted to accused Nos.7, 4, 3, 2, 10 and 9
are hereby cancelled and they are committed to jail,
except accused Nos.1 and 8 who are granted bail by this
Court.
Send a copy of the order to the concerned Court
forthwith.
Sri B.S. Prasad, learned counsel is entitled for
honorarium from the Legal Services Committee of High
Court of Karnataka for rendering assistance for respondent
No.2/accused No.10.
Sd/-
JUDGE
GBB
