Mr. Syed Nahim @ Nahim vs State Of Karnataka
2022 Latest Caselaw 2744 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 18th DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

           CRIMINAL PETITION NO. 7764/2021
BETWEEN:

MR. SYED NAHIM @ NAHIM
S/O MR. SYED BAKASH,
AGED ABOUT 23 YEARS
R/AT SAIDIYA MASJID, SADDIK LAYOUT
THANIANDRA MAIN ROAD
BANGALORE-560 077
                                             ... PETITIONER
(BY SRI. DEVENDRA E.H ADV. FOR
    SRI. MOHAN KUMAR.D, ADVOCATE)

AND:

STATE OF KARNATAKA
SAMPIGEHALLI POLICE STATION
REP. BY SPP
BANGALORE-560 001
                                          ... RESPONDENT
(BY SRI R.D.RENUKARADHYA., HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
S.C.NO.915/2021 (CR.NO.182/2020) OF SAMPIGEHALLI P.S.,
BANGALORE PENDING ON THE FILE OF THE ADDITIONAL CITY
CIIVL AND SESSIONS JUDGE, BANGALORE (CCH-69) FOR THE
OFFENCE P/U/S 143,144,147,148,341,302,120B, 201,149 OF
IPC.
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    THIS CRIMINAL PETITION COMING ON FOR ORDERS
'THROUGH VIDEO CONFERENCE' THIS DAY, THE COURT
MADE THE FOLLOWING:

                             ORDER

This petition is filed under Section 439 of Cr.P.C. praying

to enlarge the petitioner - accused No.7 on bail, in respect of

Crime No.182/2020 registered by the Sampigehalli Police

Station, Bengaluru City, for the offences punishable under

Sections 143, 144, 147, 148, 341, 302, 120(B), 201 R/w 149 of

IPC.

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 on 11.12.2020, the complainant made an allegation that on

the same day at 6.00 p.m., when the deceased was at

2nd Cross, Bharath Nagar, at that time, the accused persons

came in auto rikshaw with deadly weapons and by forming an

unlawful assembly had committed the murder of the deceased.

Hence, the police have registered a case and investigated the

matter and filed charge sheet against the accused persons.

CWs.4, 7, 8, 9, 10 and 11 are also eyewitnesses to the incident

and recovery is also made.

4. Learned counsel appearing for the petitioner would

submit that this Court had already granted bail in favour of

accused Nos.8 to 11 and since the petitioner is also standing on

the same footing, he may be enlarged on the bail as that of

accused Nos.8 to 11. There are 11 accused persons and

investigation has already been completed and charge sheet has

been filed. Hence, the custodial interrogation of the petitioner is

not required to investigate the matter and this petitioner has

falsely implicated in the case and he has been in judicial custody

since 18.12.2020. Hence, he may be enlarged on bail and he is

ready to obey the conditions that may be imposed by this Court.

5. Per contra, learned High Court Government Pleader

appearing for the respondent-State would submit that CWs 4, 7,

8, 9, 10 and 11 have categorically stated the overt acts of this

petitioner are that the petitioner had tried to inflict the injuries

on the chest of the deceased and when the victim tried to avoid

the blow, at that time, he has sustained injury to his head and

hands and once again, he tried to inflict injuries on the chest of

the deceased and when he tried to escape from the blow, at that

time, he had sustained injury to the right side of his chest. The

statement of these eye witnesses is consistent against the

petitioner. Learned HCGP further also submits that this petitioner

only drove the vehicle to spot along with other accused persons

and all of them came with deadly weapons and mercilessly

inflicted injuries on the deceased. As a result, the victim has

sustained 37 injuries. The cause of death is also due to an

account of multiple injuries sustained by the victim. Hence, there

is a prima facie case against the petitioner. The very same

autorikshaw, which drove by the petitioner to the spot and the

weapons, which were used for committing the murder of the

victim, were also recovered at his instance. Hence, there is a

prima facie material against this petitioner.

6. Having heard the learned counsel appearing for the

petitioner and also learned High Court Government Pleader

appearing for the State and perusal of materials on record, it is

seen that the prosecution case is that when the deceased was at

2nd Cross, Bharath Nagar, at that time, all the assailants came

in autorikshaw with deadly weapons and mercilessly inflicted

injuries and committed the murder of the deceased. This

incident is witnesses by CWs.4, 7, 8, 9, 10 and 11 and apart

from that recovery is also made at the instance of this petitioner.

The very allegation against this petitioner is that this petitioner

only brought the assailants in the autorikshaw and drove the

same and also he inflicted injuries with knife and also specific

statement of eye witnesses clearly indicates that with an

intention to take away the life, he tried to give blow on the chest

of the victim and in this regard, when the victim tried to avoid of

that blow, he had sustained injuries to his hands as well as his

chest. The cause of death is also on account of multiple injuries

sustained by the victim i.e., 37 injuries. The act of the assailants

is nothing but blood thirsty. When such being the case, it is not a

fit case to exercise the powers under Section 439 of Cr.P.C., only

on the ground that he has been in judicial custody from last 1

1/2 years. When the offence of committing the murder of the

deceased that too by causing multiple injuries (37 in number)

and this incident is witnessed by C.Ws, 4, 7, 8, 9, 10 and 11, is

not a fit case for granting bail.

7. The learned counsel appearing for the petitioner also

brought to the notice of this Court that accused Nos.8 to 11, who

were standing on the same footing, have already been granted

bail by the Co-ordinate Bench of this Court vide orders dated

31.07.2021 in Crl.P.No.4173/2021, dated 06.08.2021 in

Crl.P.No.4512/2021, dated 24.08.2021 in Crl.P.No.5689/2021

and dated 22.12.2021 in Crl.P.No.9200/2021 and an observation

is made that no recovery has been made at the instance of the

petitioner and CW.4 overt acts alleged against this petitioner are

that he took the knife belongs to the deceased and stabbed him

and fled away from the spot. When the facts are that there is no

any recovery made and also observing that accused Nos.8 to 11

have already been enlarged on bail by the co-ordinate bench of

this Court, the Court may exercise the discretion to enlarge the

petitioner on bail.

8. But, the factual aspects and allegations levelled against

this petitioner are that there are overt acts attributed against

this petitioner and recovery has also been made at the instance

of this petitioner and hence, the same cannot be a precedent to

enlarge this petitioner on bail. The Court has to take note of the

gravity of the offence and seriousness of allegations made in the

complaint as well as in the charge sheet and overt act.

9. The Co-ordinate Bench of this Court in petitions i.e.,

Crl.P.No.4173/2021 and Crl.P.5689/2021 had granted bail in

favour of accused Nos.8 and 10 and also observed that

admittedly, investigation is completed and charge sheet has filed

and therefore, the detention of the accused in the custody would

amounts to pre-trial punishment since the other accused who

are similarly placed are enlarged on bail in other cases and an

observation is made in respect of overt act allegations against

accused Nos.8 to 11 is different from the other accused persons.

Apart from that heinous offence of committing murder in

furtherance of common object mercilessly inflicted injuries, as a

result of the same, 37 injuries are occurred, when such being

the case, this Court has to take note of the gravity and also

seriousness of offence.

10. The Hon'ble Apex Court in the judgment in

Crl.A.No.571/2021 in the case of Kumer Singh vs. State of

Rajasthan reported in AIR 2021(6) SCJ 227 has observed

that "in a case of committing the murder with unlawful assembly

in furtherance of common object, while canceling the bail

granted by the High Court, the Hon'ble Apex Court in paragraph

No.14 held that it is required to be noted that all the accused are

charged for the offences punishable under Sections 302 and 307

R/w 149 of IPC, and also held that at this stage, the individual

role of the accused is not required to be considered when they

are alleged to have been the part of the unlawful assembly. The

Hon'ble Apex Court has also further observed that there were 26

injuries found on the dead body of the deceased and 11 injuries

on the injured Vikram Singh caused by blunt and sharp weapons.

Therefore, merely because they were armed with weapons

cannot be a ground to release them on bail and further observed

that in circumstances of the case and considering the facts more

particularly, the accused persons are charged for the offences

punishable under Sections 302 and 307 R/w 149 IPC as well as

Section 147 and 148 of IPC, this Court has to take note of the

gravity of offence and seriousness of allegations made in the

charge sheet."

11. When the accused persons are part of unlawful

assembly, the Court ought not to have exercise the discretion for

granting bail. Having considered the principles laid down by the

Hon'ble Apex Court in the judgment referred supra and even

though the overt act is different in respect of each of the

accused persons, but the same cannot be a ground to enlarge

the petitioner on bail. Hence, the orders passed by the

Co-ordinate Bench of this Court in exercising discretion in favour

of accused Nos.8 to 11 will not come to aid of this petitioner

when specific allegations are made against this petitioner.

Hence, no grounds are made to enlarge the petitioner on bail.

12. In view of the discussions made above, the petition

is rejected.

Sd/-

JUDGE

NMS