Karnataka High Court
Irshad Khan vs State Of Karnataka on 14 February, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.653/2022
BETWEEN:
IRSHAD KHAN
S/O LATE ALLAH BAKASH
AGED ABOUT 36 YEARS
R/AT AISHA MANZIL
7TH CROSS, RASHAD NAGAR
ARABIC COLLEGE POST
BENGALURU-560045. ... PETITIONER
(BY SRI SYED MUZAKKIR AHMED, ADVOCATE)
AND:
STATE OF KARNATAKA
BY GOVINDAPURA POLICE
BENGALURU CITY-560045.
REPRESENTED BY THE LEARNED
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU-560001. ... RESPONDENT
(BY SRI K.K.KRISHNA KUMAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
C.C.NO.55506/2021 (CR.NO.21/2021) OF GOVINDAPURA
POLICE STATION, BENGALURU CITY, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 120B, 143, 147, 148, 341, 302
2
R/W. SECTION 149 OF IPC AND SECTIONS 3 AND 25 OF ARMS
ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. seeking
regular bail of the petitioner/accused in Crime No.21/2021 of
Govindapura Police Station, K.G. Halli Sub-Division, Bengaluru
City, for the offences punishable under Sections 120-B, 143,
147, 148, 341 and 302 read with Section 149 of IPC and
Sections 3 and 25 of Arms Act, 1959.
2. Heard the learned counsel for the petitioner and the
learned High Court Government Pleader appearing for the
respondent-State.
3. The factual matrix of the case of the prosecution is
that accused Nos.7 and 8 are husband and wife. The accused
No.7 was sent to jail under the Gunda Act and accused No.8 was
having illicit relationship with C.W.1's husband and due that prior
enmity, the accused persons have conspired with each other and
formed an unlawful assembly and wrongfully restrained him and
committed murder and the specific overt act allegation is against
accused Nos.1 to 3 and allegation against this petitioner is that,
he along with accused No.6 held the victim and facilitated in
committing the murder. Hence, the police have registered the
case, investigated the matter and filed the charge-sheet against
the accused persons.
4. Learned counsel appearing for the petitioner would
submit that case rests upon circumstantial evidence and there
are no eye witnesses to the incident and the recovery made is
also joint recovery i.e., the alleged weapon and the alleged cloth
of the deceased is not seized from the house of this petitioner
and no material to show that cloth of the deceased is recovered
from the house of this petitioner. Hence, the petitioner may be
enlarged on bail.
5. Per contra, learned High Court Government Pleader
appearing for the respondent-State would submit that this
petitioner is the brother of other accused, who inflicted injury
with deadly weapon and the recovery made is a joint recovery
and the cloth of the deceased is recovered from the house of this
petitioner, which contain the blood stains of the deceased and
the same is sent to FSL and FSL report is awaited. Though case
rests upon circumstantial evidence, the recovery prima facie
discloses the involvement of this petitioner.
6. In reply to the argument of the learned High Court
Government Pleader appearing for the respondent-State, learned
counsel for the petitioner would submit that only allegation
against this petitioner is that he held the victim along with
accused No.6 and there is no overt act allegation against this
petitioner.
7. Having heard the respective counsel and also on
perusal of the material on record, particularly, the allegation
against the accused persons is that all of them conspired with
each other and the motive for committing murder is also with
regard to having illicit relationship and the case rests upon
circumstantial evidence. However, here is a case where blood
stained cloth of the deceased is seized from the house of this
petitioner and the same is sent to FSL and the FSL report is
awaited which is a sound circumstance against the petitioner
herein. Unless the FSL report is received with regard to the
blood stains found in the cloth of this petitioner belongs to the
deceased, at this juncture, this Court cannot exercise the
discretion in favour of the petitioner.
8. The Apex Court also in the judgment reported in
RAMESH BHAVAN RATHOD VS. VISHANBHAI HIRABHAI
MAKWANA (KOLI) AND ANOTHER reported in 2021 (6) SCC
230 has held that, while granting bail on the ground of parity
with co-accused, the Court has to take note of the manner in
which the same has to be determined. While applying principle
of parity, Court cannot exercise its powers in a capricious
manner and has to consider totality of circumstances before
granting bail on the ground of parity. While granting bail, the
Court must focus upon role of accused, and not only on weapon
carried by accused. Merely observing that another accused who
was granted bail was armed with similar weapon is not sufficient
to determine whether bail can be granted on basis of parity. In
deciding aspect of parity, role attached to accused, their position
in relation to incident and to victims is of utmost importance.
9. In the case on hand also, the case of the prosecution
is that the petitioner is a part of unlawful assembly and in
furtherance of the common object, the deceased is eliminated.
At the time of considering the bail petition, this Court cannot
assess the individual role of the accused, since the learned
counsel for the petitioner would contend that only allegation
against this petitioner is that he held him. Hence, it is not a fit
case to exercise the discretion under Section 439 of Cr.P.C. in
favour of the petitioner.
10. In view of the discussions made above, I pass the
following:
ORDER
(i) The Criminal Petition is rejected.
(ii) However, liberty is given to the petitioner to
approach this Court, after receipt of FSL report.
Sd/-
JUDGE
ST
