Mehaboob Basha Alias King Kapil vs The State Of Karnataka
2021 Latest Caselaw 2820 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

         DATED THIS THE 15 T H DAY OF JULY 2021
                        BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

         CRIMINAL APPEAL NO.100138 OF 2021
   BETWEEN
   MEHABOOB BASHA ALIAS KIN G KA PIL
   S/O. MOHAMMED ALI
   AGE. 23 YEARS ,
   OCC. DRIV ER A UT ORICKSHAW
   R/O. SHREE MEDHA COLLEGE
   FORT, BALLARI-580101
                                         ...A PPELLANT
   (BY SRI.B ANWAR BASHA,ADV .)

   AND

   1 . THE STATE OF KARNATAKA
   (THROUGH COWL BAZAR POLI CE STATION)
   R/BY STATE PUBLI C PROSECUTOR
   DHARWAD-580001

   2 . GOPAL NAIK S/ O. DASA NAIK
   D.NO.105, WARD NO.29,
   IST CROSS ,
   OPP. OLD F OREST QUARTERS ,
   NEAR BELAGAL CROSS,
   RAMANJEYA NAGA R,
   COWL BAZAR BALLARI-583101
                                       ...RESPONDENTS
   (BY SRI.RAMESH B. CHIGARI , HCGP)

        THIS CRIMINAL APEPAL FILED U/S 14(A)(2) OF
   CR.P.C., PRAYING TO ALLOW THIS APPEAL AND SET
   ASIDE THE ORDER PASSED BY THE DISTRICT AND
   SESSIONS JUDGE, BALLARI DATED 24/05/ 2021 AND
   ENLARGE THE APPELLANT / ACCUSED NO.5 ON BAIL I N
                            2




SPL. CASE NO.1067/2020 IN CONNECTION WITH
CRIME NO.108/ 2020 REGISTERED I N COWL BAZAA R
POLI CE STATION, FOR THE OFFEN CES 143, 120B, 212,
147, 148, 302, 149 OF IPC AND SECTION 3(2)( v) OF
SC/ST ACT, 1989 AND SEC.4, 25, 1(B) OF ARMS ACT,
PENDING TRIAL OF THE CASE.

     THIS CRIMINAL A PPEAL COMING ON FOR ORDERS
THIS DAY, T HE COURT DELIVERED THE F OLLOWING:


                    JUDGMENT

This appeal is filed by appellant/accused

No.5 challenging the order dated 24/05/2021

passed by I Addl. District and Sessions Judge,

Ballari in Spl. Case No.1067/2020 rejecting the

bail application of appellant/accused No.5 and

other accused sought in Crime No.108/2020 of

Cowl Bazar Police Station, Ballari for the

offences punishable under Section 143, 147,

148, 302 and 149 of the Indian Penal Code

(hereinafter referred to as the 'IPC', for

brevity).

2. The case of the prosecution is that one

Gopal Naik S/o Dasa Naik filed complaint that

the brother of the complainant Ramesh Naik

was doing Finance business and he had two

wives. The brother of the complainant C.D.

Ravi was murdered in 2014 by accused No.1 /

Ajay Kishore and other accused Nos.11, 12, 13,

14, 18 and 19 and case against them is

pending in the Court in Spl. Case No.96/2014

on the file of I Addl. District and Sessions

Judge, Ballari. It is further stated that 3-4

months prior to the incident, accused No.1 /

Ajay Kishore told before his friends to

compromise the said case or otherwise they

will do away with his life. When Ramesh Naik

(Deceased) came to know about the said fact,

he informed the same to complainant, but

Ramesh Naik told that Ajay Kishore will not do

anything and as such Ramesh Naik kept quite

and did not lodge any complaint in that regard.

It is further alleged that on 25.07.2020 at

about 4.30 p.m. when complainant was in his

house, his elder brother Manju Naik called him

on phone and told that Ajay Kishore and his

men have attacked Ramesh Naik opposite to TV

Sanatorium and immediately he went to the

spot and noticed that his brother's bike was

standing by the side of the road near ditch and

Ajay Kishore and other accused persons ran

away from the scene. The complainant saw his

elder brother and Ramesh Naik had fallen there

and he was having injuries on his head, hands

and other parts of the body due to the said

injuries, Ramesh Naik died on the spot. The

complainant transported the dead body in Auto

rickshaw to the VIMS Hospital Ballari. It is

further stated that the brother of the

complainant was murdered by the persons who

came in Auto rickshaw bearing No.KA.34/A-

3746. The said complaint came to be

registered in Crime No.108/2020 of Cowl Bazar

Police Station Ballari for the offences

punishable under Sections 143,147,148, 302

R/W 149 IPC. Thereafter, Investigating Officer

has filed charge sheet. The appellant/accused

No.5 has been arrested on 01.08.2020. The

appellant/accused No.5 has filed bail

application in Spl. Case No.1067/2020 and the

same came to be rejected by I Addl. District

and Sessions Judge, Ballari by order dated

24.05.2021. The appellant/accused No.5 has

challenged the said order in the present

appeal.

3. Heard the learned counsel appearing for

appellant/accused No.5 and learned High Court

Government Pleader for Respondent/State.

4. It is the submission of the learned counsel

for the appellant/accused No.5 that the

appellant is innocent, he has not committed

any offence as alleged and he has been falsely

implicated. The appellant/accused No.5 has

been implicated only on the basis of voluntary

statement of accused No.1. He further

contends that CW-12/Lalu Swamy eye witness

to the incident has not stated any overt act of

appellant/accused No.5 in assaulting the

deceased Ramesh Naik. It is further alleged

that this appellant/accused No.5 was driving

auto rickshaw bearing No.KA.34-A-3746 in

which accused Nos.1 to 4 came with deadly

weapons and assaulted the deceased Ramesh

Naik. He further contends that the charge

sheet has been filed and therefore, appellant is

not required for any custodial interrogation.

Without considering all these aspects, the

learned Sessions Judge has rejected the bail

application of the appellant/accused No.5,

which requires interference by this Court. With

this he prayed to allow the appeal.

5. Per contra, the learned HCGP submits that

the offence alleged against the

appellant/accused No.5 and other accused is a

heinous offence punishable with death or

imprisonment for life. The eye witness to the

incident CW.12/Lalu Swamy has specifically

stated in his further statement the presence of

accused No.5 on the spot at the time of

incident. He further contends that if, the

appellant is granted bail, he will tamper

prosecution witnesses. Considering all these

aspects, Sessions Judge has rightly rejected

the bail application of appellant/accused No.5

and the impugned order does not requires to

be interfered with. With this, he prayed to

dismiss the appeal.

6. Having regard to the submission made by

the learned counsel for the appellant and the

learned High Court Government Pleader, this

Court has gone through the charge sheet

papers and the impugned order.

7. A case was registered against the accused

Nos.1, 11 to 15, 18 and 19 in the year 2014 in

respect of murder of C.D.Ravi, the brother of

deceased Ramesh Naik in Spl. Case No.96/2014

and it was pending on the file of I Addl.

District and Sessions Judge, Ballari. In the

said case deceased Ramesh Naik was bringing

the witness to the Court and making efforts to

prove the case so as to punish the culprits.

with a fear that they will get punishment,

asked deceased Ramesh Naik for compromise

in the murder case and threatened him. The

said Ramesh Naik did not yield to the request

and 19 were wrecking vengeance against the

to 15, 18 and 19 have conspired to commit

murder of deceased Ramesh Naik and at that

time accused Nos.2 to 6, 8, 15, 16, 17 and 20

have told that they are ready to assist them in

murdering Ramesh Naik (deceased). It is the

case of the prosecution that on 27.05.2020,

to inform the movements of the deceased

Ramesh Naik and they informed the

movements of the Ramesh Naik to accused

No.1. Thereafter, accused Nos.1 to 14 in the

Auto rickshaw of appellant /accused No.5

bearing No.KA.34.A.3746 kept the deadly

in the backside of the Auto and waiting at Tilak

Nagar and at about 4.15 p.m. accused No.6

made a phone call to accused No.1 and told

that Ramesh Naik is moving in his black colour

Royal Enfield Bullet from Belagal cross towards

Belagal road. The said deceased Ramesh Naik

was traveling on bike along with CW-12 and at

that time accused No.5 stopped the Auto in

front of the Bullet of the deceased Ramesh

Naik and accused Nos.1, 3 and 4 took long

choppers kept in the Auto and accused No.1

assaulted the deceased Ramesh Naik with long

chopper on his head and to escape that hit the

deceased Ramesh Naik put is hands on his

head and he sustained injury on his hand and

at that time CW-12 with a fear ran away from

the spot and at that time deceased Ramesh

Naik started running leaving the foot wear,

accused Nos.1, 3 and 4 threw the long

choppers in a school building, in the bushes

and accused Nos.2 and 5 have left the Auto

and ran away. On looking to the said case of

the prosecution, no overt act is alleged against

the appellant/accused No.5. Even the eye

witness CW-12/Lalu Swamy has not stated any

overt act of the appellant/accused No.5. He

has only stated the presence of the appellant

on the spot at the time of incident. As the

charge sheet is filed, the presence of

appellant/accused No.5 is not required for any

custodial interrogation. Appellant/accused

No.5 is in judicial custody from 01.08.2020.

Without considering all these aspects, the

Session/Special Judge has passed the

impugned order and rejected the bail

application of the appellant/accused No.5

which requires interference by this Court. The

main objection of the prosecution is that if, the

appellant is granted bail, he will tamper

prosecution witness, the said objection may be

set right by imposing some stringent

conditions.

8. In the facts and circumstances of the case

and submission of the counsel, this Court is of

the view that there are valid grounds for

setting aside the impugned order and granting

bail subject to terms and conditions. Hence, I

proceed to pass the following:

ORDER

The appeal is allowed.

Impugned order dated 24/05/2021 passed

in Spl.Case.No.1067/2020 by I Addl. District

and Sessions Judge, Ballari is set aside.

The bail application filed by

appellant/accused No.5 under Section 439 of

Cr.P.C. is allowed. Consequently, the appellant

/ accused No.5 shall be released on bail in

Crime No.108/2020 (Pending in Spl.

Case.No.1067/2020) of Cowl Bazar Police

Station subject to the following conditions:

i) The appellant/accused No.5 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only)

each with one surety for the like sum to the satisfaction of the jurisdictional Court.

ii) The appellant/accused No.5 shall not indulge in tampering the prosecution witnesses.

  iii) The       appellant/accused           No.5          shall
         attend    the      Court    on    all   dates        of
         hearing       unless   exempted         and        co-
         operate       in   speedy   disposal         of    the
         case.

  iv) The        appellant/accused           No.5          shall
         mark      his       attendance          in         the

jurisdictional Police Station on first Sunday of every month for a period of six months.

Sd/-

JUDGE

H MB