Karnataka High Court
Jiya @ Jiyas @ Isub Sheeyad @ Yusuf ... vs State By on 22 June, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.4023/2022
BETWEEN:
JIYA @ JIYAS @ ISUB SHEEYAD
@ YUSUF SHEEYAD
S/O. BADAVAN KUNHI
AGED ABOUT 35 YEARS
R/AT AMBIKANA HOUSE, PAIVALIKE
KASARGOD DISTRICT
KERALA STATE - 671 348. ... PETITIONER
(BY SRI RAJESH RAI, ADVOCATE)
AND:
STATE BY
ULLALA POLICE STATION
D.K.DISTRICT, MANGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560001. ... RESPONDENT
(BY SRI MAHESH SHETTY, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
C.C.NO.1282/2021 (CR.NO.63/2017) OF ULLAL P.S.,
MANGALURU CITY FOR THE OFFENCES P/U/S. 120B, 143, 144,
147, 148, 341, 504, 506, 302, 307, 326 R/W. 149 OF IPC AND
2
SECTIONS 3, 25,(1)(1B) AND SECTIONS 7, 25(1)(1A) AND
27(3) 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 No.2 in Crime No.63/2017
of Ullal Police Station, Mangaluru City, for the offence punishable
under Sections 120-B, 143, 144, 147, 148, 341, 504, 506, 302,
307, 326 read with Section 149 of IPC and Sections 3,
25(1)(1B), 7, 25(1)(1A) and 27(3) of Indian 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.1 to 9 have conspired with each other in
Hidayath Club on 14.02.2017 at 11.00 a.m. and in furtherance
of the conspiracy, in order to commit murder of the victim,
traveled in tipper lorry. That on 14.02.2017 in the night, in front
of petrol pump in National Highway No.66, at around 12.00 in
the midnight, noticing that the victim is coming in the car,
accused No.6 dashed against the said car by using the tipper and
at that time, this petitioner, who is accused No.2 was driving the
vehicle and accused Nos.1 and 2 fired at the victim and accused
Nos.3 and 4 inflicted injury with Talwar and when the victim was
trying to escape from the spot, the accused Nos.1 to 5 and 7, in
furtherance of the common object, both the accused fired at the
victim and accused Nos.3 and 4 inflicted injury. As a result, the
victim sustained injuries and succumbed to the same.
4. Learned counsel for the petitioner would submit that
the incident has taken place in the year 2017 and this petitioner
is produced through body warrant on 24.11.2021 and pistol was
recovered from accused No.1. Though the allegation is made
against this petitioner that he fired at the victim, fired injury is
only injury No.26 and other injuries are chop wound injuries.
The counsel would submit that allegation is made against
accused Nos.3 and 4 that they inflicted injury with Talwar and
accused Nos.1, 3, 5, 6 and 8 are already enlarged on bail and
others have absconded and this petitioner is also entitled for bail
on the ground of parity, as the allegation against the accused
No.1 is also similar to this petitioner.
5. Per contra, learned High Court Government Pleader
for the respondent-State would submit that this petitioner
absconded immediately after committing the murder and he was
secured in the year 2021, that too, through body warrant and
specific overt act allegation is made against this petitioner that
he fired at the victim. Apart from that, injury No.26 sustained
by the victim also corresponds with the allegation made against
this petitioner and it is a brutal act and 28 injuries were inflicted
and cause of death is on account of chop would injuries and
other injuries. Hence, there is a prima facie case against the
petitioner herein.
6. Having heard the respective counsel and also on
perusal of the material available on record, the incident has
taken place in the year 2017 and the allegation against this
petitioner is that he was also one of the person, who conspired
with other accused persons to eliminate the victim and he not
only conspired with other accused persons, but all of them went
in a vehicle and dashed against the car in which the victim was
proceeding and thereafter, this petitioner and other accused
persons fired against him. As a result, he sustained injuries.
7. Having taken note of the fact that there are eye
witnesses to the incident and apart from that, recovery is made
at the instance of this petitioner i.e., pistol and when there is an
injury caused by using pistol and the petitioner is a part of
unlawful assembly, it is not a fit case for exercising the
discretion in favour of the petitioner.
8. The Apex Court in the judgment in the case of
KUMER SINGH VS. STATE OF RAJASTHAN AND ANOTHER
reported in 2021 (6) SCJ 227, in paragraph No.14 observed
that, it is required to be noted that all the accused are charged
for the offences punishable under Sections 302 and 307 read
with Section 149 of the IPC. 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.
9. When such principle is laid down by the Apex Court
and specific overt act allegation is made against this petitioner,
the petitioner is not entitled for bail. The other contention of the
learned counsel for the petitioner is that accused Nos.1, 3, 5, 6
and 8 have been enlarged on bail and the same comes to the aid
of this petitioner. When specific overt act allegation is made
against the petitioner that he fired at the victim and pistol is
recovered from the petitioner and there is a bullet injury i.e.,
injury No.26, it is not a fit case to exercise the discretion in
favour of the petitioner even on the ground of parity
10. In view of the discussions made above, I pass the
following:
ORDER
The criminal petition is rejected.
Sd/-
JUDGE
ST
