Karnataka High Court
Sri Mohammed Jameel vs State Of Karnataka on 2 February, 2021
Author: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF FEBRUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.1318 OF 2020
BETWEEN
SRI MOHAMMED JAMEEL
S/O. MOHAMMED IBRAHIM,
AGED ABOUT 33 YEARS
R/O. NO. 1/6,
DINNUR 2ND MAIN ROAD,
5TH CROSS, RT NAGAR,
SHALIMAR APTS,
BANGALORE 560032
...APPELLANT
(BY SRI: S BALAKRISHNAN, ADVOCATE)
AND
1. STATE OF KARNATAKA
BY DEVARAJEEVANAHALLI P.S,
BANGALORE 560064,
REP BY SPP,
HIGH COURT BUILDING,
AMBEDKAR VEEDHI,
BANGALORE 560001
2. SRI. R. AKHANDA SRINIVASA MURTHY
S/O. LATE RAMAIAH,
AGED ABOUT 50 YEARS
2
MLA, PULAKESHINAGAR CONSTITUENCY,
NO. 32, KAVAL BYRASANDRA,
RT NAGAR POST,
BANGALORE 560032.
...RESPONDENTS
(BY SRI: P. PRASANNA KUMAR, SPL.PP FOR R1;
SRI: MURTHY DAYANAND NAIK, ADVOCATE FOR R2)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14A OF
SC/ST (POA) ACT PRAYING TO SET ASIDE THE JUDGMENT OF
REJECTION OF BAIL PETITION IN CRL.MISC.NO.5893/2020
DATED 09.10.2020 ON THE FILE OF THE LEARNED LXX
ADDITIONAL CITY CIVIL AND SESSIONS COURT, (SPL.JUDGE)
BENGALURU IN CR.NO.219/2020 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 427, 144, 120B, 143, 145, 149,
435,436, 395 R/W 149 OF IPC AND UNDER SECTION 2 OF
KARNATAKA PREVENTION OF DESTRUCTION AND LOSS OF
PROPERTY ACT AND UNDER SECTION 3(1)(c), 3(2), (iii), (iv),
(v), (va) OF SC/ST (POA) ACT ON THE FILE OF THE
DEVARAJEEVANAHALLI P.S., BENGALURU AND ALLOW THE
APPEAL GRANTING BAIL TO APPELLANT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
Heard learned counsel for the appellant and learned Spl.PP
for respondent No.1 and Sri. Murthy D. Naik, learned counsel for
respondent No.2.
After completion of the investigation, the appellant moved
a bail petition before the trial Court under section 439 Cr.P.C.
The same has been rejected by order dated 9.10.2020,
whereafter the appellant has approached this Court.
2. Learned counsel for the appellant Sri.S.Balakrishnan
would submit that the appellant herein is implicated in the
alleged offence solely on the basis of the statement of CW-10.
This statement was recorded on 23.08.2010 eventhough the
offence is alleged to have taken place on 11.08.2020. CW-10
has been cited as eyewitness, but in the FIR, the name of the
present appellant was not shown. There are no allegations
whatsoever even in the statement of CW-10 that the appellant
herein was a part of the conspiracy nor is there any recovery to
connect the appellant to the alleged offence under section 395
IPC. The only allegation made in the statement of CW-10 is that
the appellant herein was also one of the accused persons who
set fire to the house of respondent No.2. His statement indicates
that he was a close associate of respondent No.2. It is
submission of the learned counsel that if infact CW-10 was an
eyewitness to the alleged incident as stated in the appeal,
nothing prohibited CW-10 to disclose the name of the appellant
either to respondent No.2 or to the police who had collected the
evidence in respect of the alleged incident on the date of the
incident itself. Even the CCTV footages and the video footages
were collected in respect of the occurrence. In none of these
materials, the appellant's image has been shown which indicates
that the appellant is sought to be implicated based on the
random allegation made by CW-10. Further he submits that the
appellant had no ill-will or animosity with either of the groups.
He is a tender coconut vendor. Under the said circumstances,
the incarceration of the appellant is wholly illegal and on that
ground, he seeks release of the appellant.
3. Sri.P.Prasanna Kumar, learned Spl.PP appearing for
respondent No.1 - State has filed a detailed statement of
objections opposing the appeal and has produced copies of the
photographs as well as copies of the judgments passed by the
co-ordinate Benches of this Court on the three applications filed
by some of the co-accused and would submit that prima facie
evidence is available in proof of the complicity of the appellant in
the commission of the alleged offence by way statement of
CW.10 and that the entire incident having taken place in
furtherance of prior conspiracy having regard to the gravity of
the offence, appellant is not entitled for bail.
4. Learned counsel appearing for respondent No.2 also
argued for dismissal of the appeal, contending that in view of the
gravity of the offence and the manner in which the alleged
offence has been committed, the appellant cannot be enlarged
on bail at this stage, as further investigation under section
173(8) Cr.P.C. is in progress. In support of his submission,
learned counsel for respondent No.2 has placed reliance on the
following decisions:-
1. Virupakshappa Gouda and another vs. State of Karnataka
and another.
(2017)5 Supreme Court Cases 406.
2. Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu
Yadav and another,
(2005)2 Supreme Court Cases 42.
3. Mohd. Haroon and others vs. Union of India and another,
(2014) 5 Supreme Court Cases 252.
4. Mohammed Mujeeb vs. State by Electronic City P.S., Rep.
by State Public Prosecutor Officer at High Court
2020 SCC Online Kar 542.
I have considered the rival submissions and perused the
material on record.
5. There are in all 64 accused persons. The charge
sheet is filed under Sections 143, 144, 145, 447, 448, 435, 436,
395, 427, 120B R/W 149 OF IPC and section 2 of Karnataka
Prevention Of Destruction And Loss Of Property Act, 1981 and
sections 3(2), (iii), (iv), (v), (va) of SC/ST (POA) ACT, 1989 and
section 25(1B)(b) of the Arms Act, 1959. The case of the
prosecution is that as a sequel to the publication of derogatory
posts in the Facebook against Lord Krishna and Mohammed
Paigambar, all the accused persons alleged to have entered into
a criminal conspiracy and in furtherance thereof, on 11.08.2020
at about 8.00 p.m., ransacked the house of respondent No.2 a
Sitting MLA of Pulakeshinagar constituency and later set his
house on fire.
6. What is relevant to be noted is that, eventhough the
incident is said to have taken place on 11.08.2020, the name of
the appellant did not figure either in the FIR lodged at the
earliest instance or in the statement of the various witnesses
recorded by the police on 11.08.2020. The records indicate that
eventhough there were no allegations whatsoever against the
appellant, he was arrested on 19.08.2020 without any basis.
Even on that day, there was no allegation either by CW.10 or by
any other witness. He has not been identified as one of the
culprits. It is only on 23.08.2020 twelve days after the incident
for the first time, CW.10 came forward with a statement alleging
that he was an eyewitness to the incident and that he witnessed
the entire incident by hiding behind a wall and he saw the
appellant herein setting fire to the house of respondent No.2.
There are no allegations that the present appellant was
instrumental in ransacking the house of the complainant, which
appears to be the main motive for the commission of the
offence. There are no materials on record to show that the
appellant herein was a party to the alleged conspiracy. No
recovery has been effected at the instance of the appellant to
connect him to the alleged offence under section 395 of IPC.
7. Undisputedly, the appellant is sought to be
implicated on the basis of the solitary statement of CW.10. It is
trite that in an offence of this nature, when the size of the
assembly is quite large, without the consistent testimony of
more than one witness, the charge cannot be brought home.
Therefore, the gravity of the offence or the magnitude of the
evidence collected by the prosecution cannot be a factor to deny
bail to the appellant. The ultimate test is, Whether the material
collected by the prosecution prima facie make out the
ingredients of the offences charged against the accused and
there is reasonable apprehension of the accused tampering with
the prosecution witnesses and not being available for the
purpose of eventual trial?
8. On going through the charge sheet papers, I do not
find any such prima facie material against the appellant in
respect of the offences alleged in the charge sheet. That apart,
the investigation itself having been completed and there being
no apprehension whatsoever from any quarters that in the event
of release of the appellant, he is likely to tamper the evidence or
threaten or allure any of the prosecution witnesses, much less,
CW.10, who happens to be a close aid of respondent No.2 and
considering the background of the appellant who does not carry
any criminal antecedents, in my view, it would be travesty of
justice to deny bail to the appellant, merely on the ground that
the offences alleged in the charge sheet are grave in nature and
that the other co-accused facing similar charges have been
denied bail by this court. The orders relied on by learned Spl. PP
relating to the denial of bail to some of the co-accused are
concerned, the said orders appear to have been passed based on
the prima facie material collected against them by the
Investigating Agency in proof of their complicity in the alleged
incident, but no such prima facie evidence is available insofar as
the appellant is concerned.
9. Except the statement of CW.10, there is absolutely
no material to connect him to the alleged offence. The
photographs produced by the learned Spl.PP along with the
objection statement are not the part of charge sheet. The CCTV
footages and video footages taken during the occurrence do not
depict the presence of the appellant near about the scene of
occurrence. Under the said circumstances, having regard to the
above facts, extension of custody of the appellant would be
wholly illegal and violative of the fundamental rights of the
appellant. In that view of the matter, the appeal deserves to be
allowed.
Accordingly, the appeal is allowed.
i) The appellant is ordered to be enlarged on
bail on furnishing bond in a sum of
Rs.1,00,000/- (Rupees One Lakh only) with
two sureties for the likesum to the
satisfaction of the trial court.
ii) He shall regularly appear before the court as
and when required.
iii) He shall not threaten or allure the
prosecution witnesses and shall not
intermeddle with the prosecution evidence in
whatsoever manner.
iv) He shall not leave the jurisdiction of the Trial
Court without prior permission.
It is made clear that the discussions and observations made in
this order pertain to the appellant herein and cannot be made
applicable to any other co-accused charged with the above
offences.
Sd/-
JUDGE
*mn/-bss.
