Karnataka High Court

Mr. Syed Saklene Mustaq vs State Of Karnataka on 10 November, 2021

Author: K.Natarajan

                           1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.6646 OF 2021

BETWEEN
MR. SYED SAKLENE MUSTAQ
S/O. MR. SYED SIRAJUDIN DAULA,
AGED ABOUT 21 YEARS,
RESIDING AT NO.517,
2ND CROSS, BHARATNAGAR,
THANISANDRA MAIN ROAD,
BENGALURU - 560 077.
                                          ... PETITIONER
(BY SRI PRADEEP C.S., ADVOCATE)
AND
STATE OF KARNATAKA
SAMPIGEHALLI POLICE STATION,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
                                         ...RESPONDENT
(BY SRI R.D. RENUKARADHYA, HCGP)
     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN S.C.NO.915/2021
(CRIME NO.182/2020) OF SAMPIGEHALLI POLICE STATION,
BENGALURU, PENDING ON THE FILE OF THE CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-69) FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 341, 302,
120(B), 201 AND 149 OF THE IPC.

      THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

This petition is filed by the petitioner-accused No.5

under Section 439 of Cr.P.C., for granting bail in Crime

No.182/2020 registered by Sampigehalli Police Station for

the offences punishable under Sections 143, 144, 147,

148, 341, 302 read with Section 149 of the Indian Penal

Code, 1860 (for short 'IPC') pending on the file of the 7th

Additional CMM Court, Bengaluru.

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for

the respondent-State.

3. The case of the prosecution is that the

complainant-Nurullah who is the father of the deceased

filed a complaint to the Police on 11.12.2020 alleging that

he is having four sons and two daughters. Out of which,

the deceased was his third son namely Mohammed

Tanveer @ Tannu @ Tanveer Shek. He further says that

about one year prior to the incident, his son Mohammed

Tanveer assaulted accused No.1-Sanaulla Khan along

with others by cutting his ears and a case was also

registered against his son and he was released on bail.

Subsequently, in the month of October, he is also said to

have been assaulted one Sahil Khan, therefore, one more

case was registered against his son and he was taken to

the custody and subsequently, released on bail. Accused

No.1 and his sons had developed enmity and were

planning to commit murder of his son and his friends. That

on 11.12.2020 at about 6.00 p.m., when the complainant's

son Sajjad-CW.4 was in the 3rd cross, Bharath Nagar

changing stepney of the Auto rickshaw, he heard loud

voice from the 2nd cross and he went to see as to what is

happening and there he saw that accused No.1 and his

sons who are accused Nos.2 to 4 and his henchmen, this

petitioner, accused Nos.6 and 7 and other persons were

quarrelling with the complainant's son and were assaulting

him with deadly weapons like Long, Machette and Knife

and caused injuries, thereby, the complainant's son was

died on the spot. After registering the case, this petitioner

and other accused were arrested by the Police on

28.01.2021 and this petitioner was remanded to the

judicial custody. His bail petition came to be rejected by

the learned Sessions Judge. Hence, he is before this Court.

4. Learned counsel for the petitioner seriously

contended that the petitioner is innocent of the alleged

offences and he has been falsely implicated in the case.

Accused Nos.8 to 10 having similar allegation have been

granted bail by the Co-ordinate Bench of this Court.

Therefore, this petitioner is also entitled for bail on the

ground of parity. There is no recovery of any weapon from

this petitioner. He is in custody from almost ten months.

Hence, prayed for granting bail.

5. Per contra, learned High Court Government

Pleader seriously objected the bail petition and contended

that the names of accused Nos.8 to 10 were not

mentioned in the FIR. Subsequently, their names were

added in the further statement and therefore, the Co-

ordinate Bench of this Court has granted bail to those

accused persons. But the name of this petitioner is found

in the FIR as well as in the further statement. The

statement of eye-witness i.e., C.W.4-Sajjad clearly reveals

that this petitioner has actually participated in the

commission of murder and after the offence, this petitioner

along with the other accused persons washed the blood

stains on the weapons and destroyed the evidence.

Thereby, the accused persons have also committed offence

under Section 201 of IPC. If the petitioner is granted bail,

he is likely to commit similar offence and abscond from the

case. Hence, prayed for dismissing the petition.

6. Upon hearing the arguments and on perusal of

the records, admittedly, the son of the complainant was

found murdered by accused No.1 and his persons as per

the complaint made by the complainant. The complainant

is not the eye-witness to the incident but he came to know

about the incident through one of his son i.e., CW.4-

Sajjad. The statement of Sajjad clearly reveals that

accused No.1 and his sons i.e., accused Nos.2 to 4 and

accused No.5-this petitioner, accused Nos.6 and 7 along

with other accused have committed murder of his brother.

In the further statement, the names of accused Nos.8 to

11 were added by the Police and at the initial stage of

registering the FIR, the names of accused Nos.8 to 10

were not mentioned and it is mentioned as others. The

name of this petitioner is shown as accused No.5 in the

FIR. This petitioner along with the co-accused persons

were actually participated in the commission of murder by

assaulting the deceased with the deadly weapons. Though

the learned counsel for the petitioner submits that this

petitioner has assaulted the deceased only on the legs and

it is not a vital part, but, the contention of the learned

counsel cannot be acceptable. When the other accused

persons were trying to assault the deceased and when the

deceased was trying to escape from them, this petitioner

assaulted on legs other accused persons attacked the

deceased and committed murder. The co-accused persons

were already granted bail by the Co-ordinate Bench of this

Court as their names were not shown in the FIR and their

names were added only in the further statement. The

accused persons are the rowdy-sheeters. Of course, the

deceased has also involved in two cases for having

assaulted accused No.1 and another person. This murder

was occurred due to rival gangs and registered the case

one after the other against each gang. There is a prima

facie material placed on record to show that this petitioner

and other accused were committed murder brutal murder

of the deceased. The Hon'ble Supreme Court in various

cases especially it has held that in offences like murder

case, the Court should consider the gravity of offence while

granting bail and if the accused released on bail, he may

commit similar offence, abscond from the case and delay

the process. The Hon'ble Supreme Court in the case of

State Through C.B.I vs Amaramani Tripathi arising out

of S.L.P. (CRL) No.3503 of 2004 had relied upon the

judgment in the case of Kalyan Chandra Sarkar vs.

Rajesh Ranjan reported in 2004 (7) SCC 528, wherein, it

has held as under:

"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, 2002(3) SCC 598 and Puran vs. Ram Bilas 2001(6)SCC 338.

This Court also in specific terms held that:

"the condition laid down under section 437(1)(i) is sine qua non for granting bail even under section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the

offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."

7. In view of the principle laid down by the

Hon'ble Supreme Court and by looking to the facts and

circumstances of the case, this petitioner and other

accused have committed murder of the deceased which is

heinous offence and they are all rowdy-sheeters. The

incident took place between the rival gangs. Such being

the case, if the petitioner is granted bail, there is every

possibility of committing similar offence, absconding from

the case and tampering the witnesses are not ruled out.

The ground of parity is not available to this petitioner as

this petitioner has actively participated in the commission