Mohammed Arif vs State By
2021 Latest Caselaw 2934 Kant

                             1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF JULY, 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR

          CRIMINAL APPEAL NO. 419 OF 2021

BETWEEN:
Mohammed Arif
S/o Mohammed Akbar
Aged about 25 years
R/at No.51, 3rd Main
3rd Cross, New Baglur Layout
Bengaluru North
St. Thomas Town
Bengaluru - 560 084.
                                           ...Appellant

(By Sri. Mohammed Tahir - Advocate)

AND:

1.     State by
       Devarajeevanahalli Police Station
       Bangalore
       Rep. by State Public Prosecutor
       High Court Complex Building
       Bangalore - 560001.

2.     Sri. Pawan Kumar T
       S/o. Late Thimmaiah
       Aged about 65 yers
       R/at No.48, Ramaswamy Nilaya
       Jay Mathamma
                                2


      St. Nagamma Layout
      Kawal Bysandra, DJ Halli
      Bangalore - 560032.
                                              ...Respondents

(By Sri. Nitingowda - Advocate for
    Sri. P. Prasanna Kumar - Advocate for R-1)

      This Criminal Appeal is filed under Section 14A of
SC and ST (POA) Act, praying to grant regular bail to the
appellant in the Crime No.208/2020 of IPC registered
with the Respondent Devarajeevanahalli Police Station
for the offence punishable for the alleged offences under
Sections 143, 144, 147, 148, 504, 435, 436, 395, 448,
149, 427 of IPC, under Section 2 of Karnataka
Prevention of Destruction and Loss of Property Act,
1981 and under Sections 3(1),(c),(r),(s), 3(2), (iii),(v), (va)
of SC & ST (POA) Act, 1989, pending in the file of the
Court of LXX-Addl. City Civil and Sessions Judge and
Special Judge at Bengaluru in Spl. C.C. No.758/2020.

      This Criminal Appeal coming on for Orders
through video conference this day, the Court delivered
the following:

                       JUDGMENT

Learned counsel Shri Mohammed Tahir for

appellant appears through video conferencing. Learned

counsel Shri Nithin Gowda for respondent No.1 as well

appears through video conferencing and represents the

learned Spl. PP Shri P. Prasanna Kumar for

Devarajeevanahalli P.S. relating to the case in

Cr.No.208/2020. Though service report is awaited in

respect of the notice issued to Respondent No.2 /

Pawan Kumar T, the informant, this court has already

granted bail in other similar matters arising out of the

same crime number, wherein also the said Pawan

Kumar T had remained absent and unrepresented. In

view of the said submission of the learned counsel, the

matter is taken up for hearing and is disposed of by this

judgment.

2. Accused No.5 / Mohammed Arif has preferred

this appeal under Section 14-A of the Scheduled Castes

& Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2015, praying to, set aside the order

passed by the LXX - Addl. City Civil and Sessions Judge

& Special Judge, at Bengaluru in Crl. Misc.

No.7301/2020 and thereby to release the appellant /

accused No.5 on bail in Crime No.208/2020 for the

punishable offences under Sections 435, 395, 143, 144,

147, 148, 436, 448 r/w 149 of IPC and under Section 2

of Karnataka Prevention of Destruction and Loss of

Property Act 1981 and under Sections 3(2)(v), 3(2)(v-a),

3(iii), 3(1)(c)(r) of the SC & ST (POA) Act, 1989 now

registered as Spl.C.No.758/2020 pending on the file of

LXX-Addl. City Civil and Sessions Judge and Special

Judge, at Bengaluru.

3. Heard the learned counsel Shri Mohammed

Tahir for the appellant and the learned counsel Shri

Nithin Gowda who is representing the learned Spl. PP

Shri P. Prasanna Kumar for Respondent No.1. Learned

Spl. PP for Respondent No.1 has taken care of the

contentions as well as the allegations made in the

complaint filed by Respondent No.2 who is the

gravamen of the incident as under Section 301 of the

Cr.P.C.

4. Learned counsel for the appellant has taken me

through the role made by this accused as well as the

other accused relating to commission of offences in

Cr.No.208/2020. The I.O. has taken up the case for

investigation and thoroughly investigated the case and

during investigation, he has collected material evidence

and so also recorded the statement of witnesses and

laid a charge-sheet against the accused before the court

having jurisdiction in Spl.C.No.758/2020. However,

the co-accused have already been granted bail in

Crl.A.No.479/2021 C/w. Crl.A.496/2021 by imposing

certain suitable conditions and this accused as well

stands on a similar footing in respect of the alleged

offences. Therefore, learned counsel prays that

principles of parity be extended to this accused as well

by considering the grounds urged in this appeal and to

allow the appeal and consequently to set aside the order

passed by the Special Court Spl.C.No.758/2020 in

respect of Accused No.5. Consequent upon allowing the

appeal, the petition / application filed by the appellant

under Section 439 Cr.P.C. be restored and thereafter

the grounds urged in the bail petition which is in

consonance with the contentions taken in the appeal

memo be considered and consequently grant bail to the

accused, where the accused is ready to abide by any

terms and conditions imposed by this court while

granting bail.

5. The second limb of argument that is advanced

by the learned counsel for the appellant is that the

incident had taken place on 11.08.2020 at around 8.30

p.m. but FIR was registered by the D.J. Halli P.S. as on

13.08.2020, based upon the information given by

Pawan Kumar T. Whereas in the gist of the complaint,

it is stated that on 11.08.2020 at around 8.30 p.m., a

mob of 500 to 600 miscreants said to be termed as

accused persons, had gathered near the complainant's

house and had entered into his house and abused him

in filthy language and caused nuisance in that area,

which is termed as 'mobocracy'. They had pelted stones

at his house and also had broken the window glasses

and the flower pots kept outside the house. It reveals

that when the complainant and his family members

were in the house, around 200 to 300 people broke

open the door and entered inside the house and had

broken the household articles such as sofa, TV, cot, bed

and other items and also had taken away cash and so

also gold and silver articles. It is also alleged that they

had burnt all the documents. Based upon the said

complaint, an FIR was recorded and thereafter, the

Investigating Officer has taken up the case for

investigation and conducted thorough investigation and

laid a charge-sheet against the accused before the

Special Court. But this accused has been apprehended

by the Investigating Agency as on 16.08.2020 and since

then, he is in judicial custody. Consequently, the case

in Spl.C.No.758/2020 is pending, wherein the appellant

is arraigned as Accused No.5.

6. The counsel further contends that the appellant

/ accused No.5 is ready to abide by any terms and

conditions to be imposed by this court while granting

bail to him. Merely because various offences have been

lugged against the accused under the IPC, 1860 under

the Special Enactment of the SC & ST (POA) Act, 1989

and so also under the Karnataka Prevention of

Destruction and Loss of Property Act, 1981 the

appellant cannot be deprived of the benefit which has

been granted to co-accused.

7. It is further contended that the appellant is a

small vendor running a Tea stall in Devarajeevanahalli

and is a resident of that locality and the appellant has

been implicated as the accused due to political rivalry,

though he has not at all involved in the alleged offences.

If the accused is kept behind bars for a longer period,

certainly the family members of the accused who are

dependent to eke out their livelihood from the sources of

this accused, would be ruined in the society. On all

these premise, the learned counsel for the appellant /

Accused No.5 seeks to allow the appeal and

consequently to set aside the impugned order passed by

the Special Court and consequently grant bail to the

accused as sought for.

8. The learned counsel Shri Nithin Gowda who is

appearing for the learned Special Public Prosecutor for

Respondent No.1 submits that in the alleged

mobocracy, the present accused had played an active

role in attacking the house of the complainant and had

also abused the complainant, which had wounded his

feelings. Further, Accused No.5 had involved with other

accused in order to hatch a criminal conspiracy to

commit offences. Though co-accused have been granted

bail, the role of each of the accused is required to be

looked into as regards the allegations made against

each of the accused. Hence, the learned Spl. PP for

Respondent No.1 contends that Accused No.5 does not

deserve to be granted bail in this appeal.

9. In the backdrop of the contentions taken by the

learned counsel for the appellant and so also the

counter made by the learned Spl. PP for R1 who is

represented by Shri Nithin Gowda, but at cursory

glance of the materials collected by the I.O. during the

course of investigation in Cr.No.208/2020 of

Devarajeevanahalli P.S., it is seen that statements of

several witnesses have been recorded. But it is said

that though the witnesses have categorically identified

the present accused No.5 as well to have participated

with other accused in order to destroy the house of the

informant namely Pawan Kumar T who is a relative of a

sitting MLA Shri Akhanda Srinivasa Murthy of

Pulikeshinagar Constituency, Bengaluru City, as

already stated, the I.O. has thoroughly investigated the

case and collected abundant material and so also held

mahazar in the presence of panch witnesses and so also

collected material objects under Property form.

Therefore, investigation has been held by the I.O. and

charge-sheet laid against the accused as contemplated

under Section 173(2) of the Cr.P.C. It is the domain

vested with the Investigating Agency to lay the charge-

sheet as contemplated under the relevant provisions of

the Cr.P.C. However, it is said that merely because

laying of a charge-sheet against the accused and even

collected several material documents and several

material objects, it cannot be said that there are strong

prima facie materials against the accused for

commission of an offence. It is the duty vested with the

prosecution to establish the guilt against the accused by

facilitating worthwhile evidence to secure conviction.

But all the materials secured by the I.O. require to be

tested by the witnesses as Examination-in-chief on the

part of the prosecution as well as cross-examination by

the defence counsel. Therefore, at this stage, we cannot

dwell in detail as regards the allegation or the guilt

against the accused. Therefore, it is deemed

appropriate to state that, at this stage that it does not

require any detailed discussion while considering the

present appeal filed by the appellant / Accused No.5 to

consider his bail petition filed under Section 439 Cr.P.C.

before the Special Court in Spl.C.No.758/2020 arising

in Cr.No.208/2020 registered by the Devarajeevanahalli

P.S.

10. It is the allegation that there was a mobocracy

by the accused persons. In that mobocracy, it would not

have been possible to identify as to who were the

persons present at the time of the incident in front of

the house of the complainant. This submission made

by the learned counsel for the appellant praying to

consider the grounds urged in these appeal, also

requires consideration.

11. The charge-sheeted materials reveal various

offences under the IPC, 1860 and so also offences under

the Special Enactment of the SC & ST (POA) Act, 1989

and so also such other offences. Therefore, it is said

that each and every ingredients of the said offences

ought to be established by the prosecution and it is the

domain vested with the prosecution alone. The domain

is vested with the defence to subject the witnesses for

cross-examination and it is the duty of the defence

counsel to establish the case whether the accused has

participated in the incident as contended by the

prosecution. Therefore, at this stage, it does not require

any detailed discussion while considering the present

appeal preferred by the appellant / Accused No.5 under

Section 14-A(2) of the SC & ST (POA) Amendment Act,

2015.

12. It is relevant to consider the submissions of

the learned counsel for the appellant / Accused No.5 by

referring to the abundant materials collected by the

Investigating Officer during the course of investigation

in order to lay the charge-sheet against the accused.

But, the court should avoid elaborate documentation of

merits while dealing with the bail petition filed by the

accused. Moreover, the court cannot go into the details

of the material evidence to find out whether the

evidence will be sufficient in establishing the guilt of the

accused. But what is necessary is the satisfaction

about the prima facie case and not an exhaustive

exploration of merits in the order itself, for

consideration of the bail petition filed by the accused.

For instance, some guidelines have been laid down

in various judgments rendered by the Hon'ble Supreme

Court of India as to how a bail petition has to be

considered by courts of law, while granting bail. The

same has to be guided by some consideration, that is to

say, the gravity of the crime / case, the character of the

evidence and so also the material evidence, position and

status of the accused with reference to the victim /

informant / complainant and so also the witnesses cited

in the charge-sheet. The likelihood of the accused

fleeing away from justice and the possibility of

tampering the witnesses and obstructing the course of

justice and such other grounds are required to be taken

into consideration and it is based upon the materials

specifically which have been collected by the

Investigating Officer in order to lay the charge-sheet.

But courts must not undertake meticulous examination

of the material evidence collected during the course of

investigation, but it should be according to the given

facts and circumstances of the case.

13. In the present case on hand, a mob of 500 to

600 people had gathered near the house of the

complainant and had thereby caused damage to his

house by setting fire to the house and there was

vandalism created by the accused. In the present appeal

on hand, it is not required to dwell into each material in

detail to consider his bail petition.

14. Therefore, keeping in view the contention

made by the learned counsel for the appellant and more

so, in view of the fact that co-accused have already been

granted bail by imposing certain suitable conditions, it

is opined that the appellant / Accused No.5 deserves for

grant of bail. Consequently, the appeal deserves to be

allowed and the impugned order passed by the Special

Judge ought to be set aside. Therefore, I proceed to

pass the following:

ORDER

The appeal preferred by the appellant / accused

No.5 under Section 14-A(2) of the SC & ST (POA)

Amendment Act, 2015, is hereby allowed and the

impugned order passed by the Trial Court in

Crl.Misc.No.7301/2020 dated 15.12.2020 for the

alleged offences, is hereby set aside.

Consequent upon setting aside the impugned

order passed by the Special Judge, the bail

application/petition filed by Accused No.5 under

Section 439 Cr.P.C. is hereby allowed, subject to the

following conditions:-

i) Appellant / Accused No.5, shall execute a bond

in a sum of Rs.1,00,000/- with likesum two sureties to

the satisfaction of the Trial Court in

Spl.C.C.No.758/2020.

ii) Appellant / Accused No.5 shall not tamper or

hamper the case of the prosecution witnesses.

iii) Appellant / Accused No.5 shall appear before

the court of law on all the dates of hearing without fail.

iv) Appellant / Accused No.5 shall not indulge in

any criminal activities henceforth.

v) Appellant / Accused No.5 shall not leave the

jurisdiction of Bengaluru City, without prior permission

from the competent court of law.

If the Appellant / Accused No.5 violates any of the

above conditions, the bail order granted to him shall

automatically stand ceased.

The appellant / accused is in judicial custody

since from the date of his arrest in connection with the

above case. Therefore, considering the submission

made the learned counsel for the appellant and also

keeping in view the Article 21 of the Constitution of

India, to protect the personal life and liberty of the

gravamen/accused, this Court deems it appropriate to

issue the operative portion of this order for compliance

by the concerned, forthwith.

Therefore, the Registry of this Court is directed to

forward the operative portion of this order forthwith to

the concerned Special Court, where Special Case

No.758/2020 is pending, for information and to proceed

further in accordance with law.

Sd/-

JUDGE

KS