Karnataka High Court
Sheik Barkath @ Bablu vs The State Of Karnataka on 5 January, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.7424/2021
BETWEEN:
1. SHEIK BARKATH @ BABLU
S/O LATE SHEIK ABDUL
AGED ABOUT 23 YEARS
R/AT No.336, 2ND FLOOR
1ST MAIN, 1ST CROSS
NEAR SIDDIQ MASJID
GANGONDANAHALLI
BENGALURU - 560 039
2. NYAMATH @ NYAMATHULLA SHARIFF
S/O MUKSUD ULLA SHARIFF
AGED ABOUT 24 YEARS
R/AT No.336, 1ST MAIN
1ST CROSS, NEAR SIDDIQ MASJID
GANGONDANAHALLI
BENGALURU - 560 039
3. ZIAULLA @ MOHAMMED ZIAULLA
S/O MOHAMMED HAYATH SHARIFF
AGED ABOUT 24 YEARS
R/AT No.225, 1ST MAIN, 1ST CROSS
NER ST. JOHN HIGH SCHOOL
GANGONDANAHALLI
BENGALURU - 560 039
... PETITIONERS
(BY SRI RAMACHANDRA M.B., ADVOCATE)
2
AND:
THE STATE OF KARNATAKA
BY CHANDRA LAYOUT POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
... RESPONDENT
(BY SRI VINAYAKA V.S., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.75/2021 OF CHANDRA POLICE STATION FOR THE
ALLEGED OFFENCES PUNISHABLE UNDER SECTION 143, 144,
148, 307, 302 R/W 149 OF IPC AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. praying
to enlarge the petitioners on bail in respect of Crime No.75/2021
registered by the Chandra Layout Police Station, Kengeri Gate
Sub-Divison for the offences punishable under Sections 143,
144, 148, 302, 307 read with 149 of IPC.
2. Heard the learned counsel for the petitioners and the
learned High Court Government Pleader appearing for the State.
3. The factual matrix of the case is that on 26.03.2021 at
about 10.30 p.m. when CW3-Arbaz was smoking, galata was
taken place in connection with the prior ill-will between the
assailants and again at 11.15 p.m. on the same day, accused
Nos.1 to 6 came and assaulted CW2 and also inflicted injury with
machchu on the deceased and as a result, he succumbed to the
injuries. Based on the complaint, case was registered,
investigated the matter and filed the charge sheet for the
aforesaid offences.
4. The learned counsel for the petitioners would submit
that CW2 only called accused No.3 and galata was taken place
between accused Nos.3 and 4 and there are no criminal
antecedents against these petitioners and there was no any
motivation to commit murder. In fact, CW2 and the deceased
were having criminal antecedents. Statement of CW2 was
recorded on 02.04.2021 though the incident was taken place on
26.03.2021 and there was no material to attract Section 302 of
IPC and the said act was also not an intentional one. The
statement of the eye-witnesses cannot be believed and only they
are the planted as witnesses and hence, the petitioners are
entitled for the bail. This Court also granted bail in favour of
accused Nos.4 to 6 in Crl.P.No.4021/2021 and on the ground of
parity also these petitioners may be enlarge on bail.
5. Per contra, the learned High Court Government
Pleader appearing for the State would submit that there are eye-
witnesses to the incident and CW2 also sustained injuries and
recoveries also made at the instance of these petitioners and
during the course of the investigation also material is emerged
ans these petitioners specific overt act is also mentioned that
they inflicted injury with machchu. The allegation against
accused No.4 is that he assaulted with his hand and accused
Nos.5 and 6 pushed the victim and hence, the question of parity
does not arise. Hence, prayed to dismiss the petition.
6. Having heard the respective counsel and also on
perusal of the documents on record, it is clear that there are
eye-witnesses to the incident and also during the course of the
investigation, materials are collected to show that accused Nos.1
to 3 have inflicted the injuries with machchu against the victim
as well as CW2 who had also sustained injuries. CW2 is the eye-
witness to the incident who had suffered with the injuries and
other witnesses have also witnessed the incident and there were
21 injuries on the victim in terms of PM report and a brutal
attack was made against the victim and these injuries are
chopped wound injuries. The very contention of the learned
counsel for the petitioners is that there was no any intention to
take away the life of the deceased and the same is a matter of
trial. When the specific allegations are made against these
petitioners, it is not a fit case to exercise the powers under
Section 439 of Cr.P.C.
7. The learned counsel for the petitioners would submit
that this Court already granted the bail in favour of accused
Nos.4 to 6 cannot be a ground to enlarge these petitioners on
the basis of parity as overt act allegations made against these
petitioners. The Apex Court in the case of RAMESH BHAVAN
RATHOD vs VISHANBHAI HIRABHAI MAKWANA (KOLI)
AND ANOTHER reported in (2021) 6 SCC 230 held that while
applying the principle of parity, the Court cannot exercise its
powers in a capricious manner and has to consider totality of
circumstances before granting bail. Parity while granting bail
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 the 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.
Having considered the principles laid down in the judgment
referred supra and also the factual aspects of the case, it is clear
that when there is a specific overt act against these petitioners,
they are not entitled for the bail on the ground of parity in view
of the order passed in Crl.P.No.4021/2021.
8. In view of the discussions made above, I pass the
following:
ORDER
The petition is rejected.
Sd/-
JUDGE
SN
