Sri. Dawood vs The State Of Karnataka
2022 Latest Caselaw 8107 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF JUNE, 2022

                            BEFORE

   THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

           CRIMINAL PETITION No. 2034/2022

Between:

Sri. Dawood
Aged about 40 years
S/o. Bhavakka @ Bhava
Bottu Dharma Nagar,
Ullal, Mangaluru 575 202.
D.K.                                                ... Petitioner

(By Sri. Chandranath Ariga K., Advocate)

And:

The State of Karnataka
Station House Officer
Mangaluru South Police Station
Mangaluru 575 001.
Represented by the
Special Public Prosecutor
High Court of Karnataka
Bengaluru 560 001.                                  ... Respondent

(By Sri. R. D. Renukaradhya, HCGP)

      This Criminal Petition is filed under Section 439 of Cr.P.C.
praying to allow the petition and direct the respondent to release
the petitioner on bail in S.C.No.51/2019 pending on the file of III
Additional District and Sessions Judge, D. K., Mangaluru, for the
offences punishable under Sections 143, 147, 120(B), 448, 109,
114, 302, 212 r/w Section 149 of IPC.
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      This Criminal Petition coming on for orders this day, the
Court, made the following:

                           ORDER

Petitioner who has been arrayed as accused No.1 in

the proceedings in S.C. No. 51/2019 is seeking to be

enlarged on bail in light of his detention pursuant to the

said proceedings where complaint has been registered

under Sections 143, 147, 120(B), 448, 109, 114, 302, 212

r/w 149 of IPC.

2. The case that is made out by the prosecution is

that on 13.01.2018, the petitioner and another accused

knocked the door of the house of Smt. Afsat and she

opened the door enabling entry of the petitioner and

another. It is the further case of the prosecution that both

the accused enquired about Iliyas and Smt. Afsat mentioned

that he was sleeping in the room. It is stated that the

accused entered the room of Iliyas and petitioner is stated

to have stabbed Iliyas while the other accused was holding

the hands of Iliyas and the said Iliyas is stated to have later

succumbed to injuries and died. After the completion of

investigation, charge sheet has been filed.

3. It is submitted that the petitioner is in custody

since February, 2018. It is further submitted that accused

No.2 has been enlarged on bail as per the order in Crl.P.No.

6705/2018 and that the petitioner is also entitled to be

enlarged on bail. It is submitted that this Court by order

dated 30.07.2020 passed in Crl.P.No.2417/2020 had

disposed off the previous petition wherein the petitioner had

sought for being enlarged on bail, while observing that the

application for bail would be considered after evidence of

C.Ws. 2 and 3 who are eye witnesses.

4. It is submitted that the evidence of C.Ws. 2 and

3 is completed and that there are contradictions in the

evidence of C.Ws. 2 and 3. It is further submitted that in

the evidence of C.W.3, it is submitted that C.W.1 has

opened the door. However, the evidence of C.W.1 itself is

contrary to the said assertion, as C.W.1 submits that she

was at Padmavathi Hospital in Surathkal at that point of

time. Accordingly, it is submitted that evidence of

C.W.3(P.W.3) does not inspire confidence. It is further

submitted that the evidence of eye witnesses is a matter for

trial and the petitioner is entitled to be enlarged on bail.

5. Learned counsel for the prosecution opposes

grant of bail and submits that the petitioner is involved in

several cases and that itself would be a ground to reject the

application for bail. It is further submitted that the

witnesses have in fact supported the case of prosecution.

6. Heard both sides.

7. It is to be noted that the petitioner is in custody

since February, 2018. Insofar as eye witnesses as stated by

the prosecution, i.e., C.Ws. 2 and 3, both have been

examined and their cross-examination is also completed.

Insofar as the appreciation of evidence of the witnesses is

concerned, it would not be appropriate to enter into such

appreciation at this stage in the present proceedings. The

proceedings for bail cannot be treated to be punitive in

nature. The evidence of the witnesses and its appreciation

is a matter best left to the trial proceedings. Insofar as the

petitioner being involved in various other cases, the learned

HCGP has filed a report of the Police Inspector, South Police

Station, Pandeshwara, Mangalore, and it is submitted that

though the petitioner was involved in about 10 cases, he

has not violated any of the bail conditions in any of the

matters.

8. However, learned counsel for the petitioner has

pointed out that as on date, there are only 3 cases including

the present case which are pending consideration. Apart

from the present case i.e., Crime No. 7/2018, only two

other cases which are pending trial i.e., Crime No.

423/2017 and 424/2017 both of which are triable by the

Magistrate. It is further to be noticed that admittedly the

petitioner has not violated any of the bail conditions in any

of the matters where he has been enlarged on bail though

he is stated to have been involved in several cases.

9. The contention that antecedents cannot be the

sole factor for rejecting the bail petition is also to be

accepted in light of the judgment of the Apex Court in the

case of PRABHAKAR TEWARI VS. STATE OF U.P. AND

ANOTHER - 2020 (11) SCC 648.

10. Taking note that the evidence of eye witnesses is

completed; that the petitioner has been in custody since

2018; that though the petitioner is involved in number of

other cases, the police report clearly makes out that the

petitioner has not violated any of the bail conditions; that

only two other cases are still pending against the petitioner

in Crime Nos. 423/2017 and 424/2017 both of which are

triable by the Magistrate and that present proceedings

cannot be construed to be punitive proceedings, case is

made out to enlarge the petitioner on bail.

11. Accordingly, the bail petition filed by the

petitioner under Sec. 439 of Cr.P.C. is allowed and the

petitioner is enlarged on bail in S.C. No. 51/2019 (Crime

No.7/2018) for the offences punishable under Sections

143, 147, 120(B), 448, 109, 114, 302, 212 r/w 149 of IPC,

subject to the following conditions:

(i) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.

(ii) The petitioner shall not tamper with prosecution witnesses in any manner.

(iii) The petitioner shall not indulge in similar type of criminal activities.

(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission.

(v) The petitioner shall surrender his passport before the trial Court till trial is concluded.

(vi) The petitioner shall mark his attendance on 1st of every month between 10.00 a.m. and 5.00 p.m., before the jurisdictional police till trial is concluded.

Any violation of the aforementioned conditions by the

petitioner, shall result in cancellation of bail.

12. Before parting, this Court observes looking into

the number of cases in which the petitioner has been

involved, it would be open for the petitioner's counsel in

consultation with the family members of the petitioner if

they so consider, to take steps to refer the petitioner for

counselling. Such observation must not be taken to be an

expression as regards the petitioner's behaviour. It is made

out of the concern for the petitioner so as to ensure his

integration into the main stream of the society.

Sd/-

JUDGE

VP