Karnataka High Court
Sri Dinesh M vs The State Of Karnataka By on 4 March, 2022
Bench: S.Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
CRIMINAL PETITION NO.9742/2021
c/w
CRIMINAL PETITION No.649/2022
IN CRL.P.No.9742/2021
Between:
SRI DINESH.M
S/O LATE MARIYAPPA
AGED ABOUT 45 YEARS,
RESIDING AT NO. 4S, IJOOR,
VENKATAPPA LAYOUT BADAVANE,
RAMANAGAR TALUK AND DISTRICT. ...PETITIONER
(BY SRI VENKATARAMAN NAIK, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY THE
CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH, NO. 36,
BELLARY ROAD, GANGANAGAR,
BENGALURU-560 032 REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR ...RESPONDENT
(BY: SRI MADHAV KASHYAP, ADVOCATE
FOR SRI P.PRASANNA KUMAR, SPL. P.P.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN FIR
No.RC 17(s)/2019/CBI/ACB/BANGALORE IN SPL.C.C. NO.565/2021
PENDING BEFORE THE HONBLE LXXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82) FOR THE OFFENCES P/U/S
143, 147, 148, 120-B, 201, 302 R/W SECTION 149 OF IPC AND
SECTION 25 READ WITH SECTION 3, 5, 8 , 29 OF ARMS ACT.
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IN CRL. P. NO. 649/2022
BETWEEN:-
1. SRI SUNIL K.S
S/O SRI SHIVANNA,
AGED ABOUT 39 YEARS,
R/AT KOLAHALLI, 1ST MAIN, 1ST CROSS,
NEAR SOMESHWARA GOWDA
SAMUDHAYA BHAVAN, MANDYA CITY,
MANDYA TALUK, MANDYA DISTRICT.
2. SRI NUTAN K
S/O SRI K.N. KRISHNAPPA,
AGED ABOUT 35 YEARS,
R/AT NO. 146, GUBBALA,
SUBRAMANYAPURA POST,
NEAR MANJUNATH FLOOR MILL,
SUBRAMANYAPURA,
BENGALURU-560 061. ...PETITIONERS
(BY: SRI J.M.ANIL KUMAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY THE
CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH, NO. 36,
BELLARY ROAD, GANGANAGAR,
BENGALURU-560 032
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR ...RESPONDENT
(BY: SRI MADHAV KASHYAP, ADVOCATE
FOR SRI P.PRASANNA KUMAR, SPL. P.P.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN RC
NO.17(s)/2019/CBI/ACB/BANGALORE IN SPL.C.C. NO.565/2021
PENDING BEFORE THE LXXXI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-82) FOR THE OFFENCES P/U/S 143, 147,
148, 120-B, 201, 302 R/W SECTION 149 OF IPC AND SECTION 25
READ WITH SECTION 3, 5, 8 , 29 OF ARMS ACT.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Criminal Petition No.9742/2021 has been filed by the
petitioner-Accused No.8 seeking to be enlarged on bail in
connection with his detention relating to the proceedings in
Spl.C.C.No.565/2021 in R.C.No.17(S)/2019 (arising out of Crime
No.135/2016 of Sub-Urban Police Station, Dharwad) pending on
the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru
(CCH-82) (Special Court exclusively to deal with criminal cases
related to elected MPs/MLAs in the State of Karnataka) for the
offences punishable under Sections 143, 147, 148, 120-B, 201,
302 r/w Section 149 of IPC and under Section 25 read with
Section 3, 5, 8 and 29 of Arms Act.
2. Criminal Petition No.649/2022 has been filed by the
petitioners-Accused Nos.10 and 13 seeking to be enlarged on
bail in connection with their detention relating to the proceedings
in Spl.C.C.No.565/2021 in R.C.No.17(S)/2019 (arising out of
Crime No.135/2016 of Sub-Urban Police Station, Dharwad)
pending on the file of LXXXI Addl. City Civil and Sessions Judge,
Bengaluru (CCH-82) (Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs in the State of
Karnataka) for the offences punishable under Sections 143, 147,
148, 120-B, 201, 302 r/w Section 149 of IPC and under Section
25 read with Section 3, 5, 8 and 29 of Arms Act.
3. Both the petitioners in Crl.P Nos.9742/2021 and
649/2022 had earlier approached the Court of LXXXI Addl. City
Civil and Sessions Judge, Bengaluru (CCH-82) seeking to be
enlarged on bail and their applications came to be dismissed by
order dated 13.08.2021 and have approached this Court by way
of present petitions and have sought to be enlarged on bail.
4. In light of identical factual matrix regarding which
the petitioners had been arrested and are in custody and also
noticing that the bail applications of the petitioners in both the
petitions having been rejected by the trial Court by a common
order dated 13.08.2021, it would be appropriate to dispose off
these petitions by this common order.
5. The narration of facts as made out in
Crl.P.No.6906/2021 ought to be adopted in the present case
also. The complaint was lodged by one Smt.Mallawwa wife of
deceased Yogeshgoudar on 15.06.2016 to the Dharwad
Sub-Urban Police and pursuant to the same, a case in Crime
No.135/2016 was registered for an offence punishable under
Section 302 of IPC against unknown accused persons and the
matter was taken up for investigation.
6. It is stated that the complainant was a resident of
Govanakoppa Village and her husband was the President of Taluk
Panchayat, Dharwad. Later, he was elected as Member of Zilla
Panchayat. It is further submitted that the deceased husband of
the complainant was running a 'Gym' at Sapthapur, Dharwad in
the name of "Udaya Gym" and he used to go to 'Gym' everyday
at 7.30 a.m., and return home at 9.30 a.m. It is further
submitted that the deceased had received an anonymous letter
few days earlier to the incident that he would be killed in the
manner in which Udayagowda was killed.
7. It is stated that on 15.06.2016, the deceased left the
house at 7.20 a.m., stating that he would go to 'Gym.' At about
8.30 a.m., when the family members were watching Suvarna
News, they noticed a news item stating that complainant's
husband was murdered in Dharwad and immediately they
proceeded to the place of incident. The complainant is stated to
have noticed the dead body of her husband with several injuries
on the head, neck and chest and lying in a pool of blood. The
police were requested to take necessary action.
8. It is further submitted that investigation was
commenced by Dharwad Police and that the statements of
eyewitnesses were recorded and Accused Nos.1 to 6 have been
arrested. There was recovery of weapons used for commission
of offence. After completion of investigation, the charge sheet
was filed.
9. After committal proceedings, case was registered as
S.C.No.50/2017 on the file of IV Addl. District & Sessions Judge,
Dharwad. The trial was commenced, the witnesses were
examined and 313 statements of the accused were also
recorded. It is submitted that when the matter was listed for
final arguments, a request was made for entrusting the
investigation to the Central Bureau of Investigation ("CBI" for
short).
10. The observations made by this Court in the order
dated 11.01.2022 passed in Crl.P.No.6906/2021 while adverting
to the statement of objections filed in the said case are also to
be taken note of for a complete enumeration of relevant facts.
The observations made at para-7 of the order dated 11.01.2022
passed in Crl.P.No.6906/2021, while referring to the statement
of objections filed, records that Smt.Thungamma (mother of the
deceased) and Sri Gurunatha Goudar (brother of the deceased)
had approached this Court seeking to hand over the investigation
to CBI in W.P.Nos.58183-184/2017. It is submitted that the
said Writ Petitions came to be rejected and liberty was reserved
to move an application under Section 319 of Cr.P.C.
11. It is however made out that fresh effort was made
for entrustment of investigation to the CBI as Sri
Gurunathgoudar had asserted that State Police had not
investigated the case properly, as vital evidence was not
considered. It was specifically asserted that there was one more
car that was involved in the incident and about 60 CC T.V.
footages around the place of incident had not been collected.
12. It is further made out that the said Sri
Gurunathgoudar had specifically asserted that the Police Officers
of the rank of Dy.S.P. and a senior politician were involved in the
said case and the said Gurunathgoudar had submitted a request
with the State Government to transfer the case to CBI
categorically mentioning the involvement of Police Officers in the
said case.
13. On the basis of the said request, the Government of
Karnataka accorded consent under Section 6 of the Delhi Special
Police Establishment Act on 06.09.2019 and accordingly, the CBI
was permitted to conduct further investigation in Crime
No.135/2016 registered by the Dharwad Sub-urban Police
Station. On receipt of order of sanction, the respondent-CBI filed
a memo before the learned Principal Civil Judge (Jr.Dn.) & JMFC.,
Dharwad under Section 173 (8) of Cr.P.C., intimating about the
respondent-CBI undertaking further investigation in the said
case. It is made out that contemporaneously in accordance with
the provisions of the CBI Manual, the respondent for
administrative and statistical purposes had re-registered
FIR No.135/2016 dated 15.06.2016 of Dharwad Sub-urban Police
Station as RC 17(S)/2019 dated 24.09.2019. On registration,
further investigation came to be commenced by the respondent
and it is stated that the respondent has completed the
investigation and has filed three supplementary charge sheets.
14. As the applications filed under Section 439 of Cr.P.C.
by the petitioners in both the petitions came to be dismissed by
a common order dated 13.08.2021 by the Court of LXXXI Addl.
City Civil and Sessions Judge, Bengaluru (CCH-82), the present
petitions have been filed.
15. The contention of learned counsel appearing for the
petitioners in both the petitions is that the allegation as made
out against the present petitioners are contained in the charge
sheet filed by CBI, a copy of which is produced as Annexure-(I)
to Annexure-A to Crl.P.No.9742/2021 and in specific, at para-19
the observations have been made, which is extracted
hereinbelow:-
"19. The further investigation revealed that
Shri. YogeshGoudar arrived near the Gym spot on
15.06.2016 in a silver coloured innova by 07.36 A.M. The
further investigation revealed that in furtherance of the
conspiracy when Shri. Yogesh Goudar was about to enter
the Uday Gym, A-7 who was waiting on the stairs
sprinkled chilli powder in the eyes of Sh.Yogesh Goudar
from a packet carried by him and stabbed him on his
neck with a dagger and unsettled Shri.Yogesh goudar
while A-9 who was holding a newspaper attacked him on
his head with "long mattchu' (machete) and when
Shri.Yogesh Goudar fell down, A-8 , A-10, A-11, A-12, A-
13 and A-14 rushed to the Gym and dragged him to the
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Gym and attacked him on his head and other parts of the
body with longs and other weapons carried in the bag by
A-8 and A-11 Dr. Dattatraya, Shri Mohan Yerchappa and
Shri Vinayak Binjinavar, Shri. Anand who were inside the
gym doing exercises at that time ran out of the place
seeing the incident.
16. It is submitted that Accused No.9 has been enlarged
on bail as per the order passed in Crl.P.No.6906/2021 and the
nature of imputation as made out against the present petitioners
are substantially identical and in light of similarity in the nature
of allegation made against the petitioners, vis-à-vis, the
imputation made against Accused No.9, and Accused No.9
having been enlarged on bail, the present petitioners are also
entitled to be enlarged on bail on the principle of parity on
similar conditions.
17. Learned counsel appearing for the respondent-CBI
would contend that there is no identical imputations made out as
against Accused No.9 on one hand, and the Accused Nos.8, 10
and 13 who have sought to be enlarged on bail in the present
petitions.
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18. It is contended that the imputation against Accused
No.9 as found in para-19 of the charge sheet, a portion of which
has been extracted hereinabove would show that Accused No.9
had attacked the deceased with "long mattchu (machete)". On
the other hand, it is pointed out that as regards Accused No.8,
10 and 13, after the deceased was attacked by Accused No.9 and
fell down, the other accused including Accused No.8, 10 and 13
rushed to the Gym, dragged him and attacked him on his head
and other portions of the body with longs and other weapons
which were carried by Accused Nos.8 and 11. Accordingly, it is
submitted that the principle of parity cannot be invoked, as the
imputations made are not identical in its entirety.
19. Heard both sides.
20. A close perusal of para-19 of the final report filed by
the respondent-CBI would encapsulate the nature of allegations
made against Accused No.9, who has been enlarged on bail in
Crl.P.No.6906/2021. The imputations made against Accused
Nos.8, 10 and 13 are also in substance substantially similar to
the imputations made against Accused No.9. In fact, the
imputations made against Accused No.9 in the charge sheet was
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that he was the first person to have attacked the deceased on his
head with 'long mattchhu' and after deceased Yogesh Goudar fell
down, the other accused, including Accused No.8, 10 and 13 had
dragged him and attacked the deceased on his head and other
parts of the body with longs and other weapons.
21. Learned counsel for the petitioners would submit that
the material relied upon in the charge sheet as regards Accused
No.9 is the same material that is relied upon by the CBI as
regards the present petitioners. Learned counsel for the CBI is
unable to controvert such assertion.
22. This Court while passing the order dated 11.01.2022
in Crl.P No.6906/2021 has considered all the aspects in detail.
At the outset, it must be noticed that Dharwad Sub Urban
Police have registered a case in Crime No.135/2016 for the
offence punishable under Section 302 of IPC against unknown
accused persons and had taken up investigation. It is also borne
out from the records that Dharwad Sub Urban Police had
completed the investigation and filed a final report after
recording the statement of witnesses whereby the imputation
was made as against accused nos.1 to 6 and there was also
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recovery of weapons stated to have been used in the commission
of offence.
23. No doubt, the Court had noticed in the earlier order
dated 11.01.2022 passed in Crl.P.No.6906/2021 that the
challenge to the order passed in W.P.No.51012/2019 was still
pending consideration before the Apex Court. However, it is
submitted that the Apex Court has confirmed the order passed in
W.P.No.51012/2019.
24. Nevertheless, what would remain is the material on
record which is required to be tested during trial, which material
consists of statement of witnesses, charge sheets and other
materials made out by Dharwad Sub-Urban Police at the first
instance, all of which admittedly point out to the involvement of
Accused Nos.1 to 6.
25. Even if additional evidence is gathered and any
further investigation by CBI is taken note of, clearly, the
evidence collected at the first instance including the statement of
witnesses and charge sheet filed and deposition before the Court,
all of which constitute part of Court proceedings and may have to
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be re-appreciated in light of the inconsistent stand taken by the
same witnesses at a subsequent point of time.
26. It must be noted that CBI has relied on different
versions of the same witnesses which the Investigating Agency
would explain and assert that there are reasons found in the said
subsequent statements of the same witnesses made before the
CBI justifying their stand on different versions. However, as
noticed by the earlier order dated 11.01.2022 passed in
Crl.P.No.66906/2021, the appreciation of such material is a
matter best left for trial.
27. This Court has in detail discussed the contradictory
material available before the Court at para-50 of the order dated
11.01.2022 passed in Crl.P.No.6906/2021, which is extracted
hereinbelow:-
"50. The very same witnesses who in 2016
had made statements regarding the imputation of
commission of crime as regards accused no.6 have
turned around in 2019. As to whether the evidence
let in at the first instance before the Court was under
undue influence resulting in tampering of evidence, is
a matter to be demonstrated in trial."
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The Court has also considered the threat perception and
involvement of Accused No.9.
28. In the present case, petitioners-Accused Nos.10 and
13 have been in custody since 03.03.2020, while Accused No.8
has been in custody since 02.03.2020. The investigation is
complete and three charge sheets have been filed by CBI.
29. As observed in para-53 of the order dated
11.01.2022 passed in Crl.P.No.6906/2021, though there have
been allegations made out by CBI while placing reliance on the
contents of the final report filed, the Investigating Agency has
pointed out to the role of Investigating Officers of having
colluded with the accused persons and thus derailing the
investigation, but as observed in the earlier order, i.e.
11.01.2022 passed in Crl.P.No.6906/2021, that by itself would
not justify the continuance of petitioners in the custody.
30. The Court, while enlarging Accused No.9 vide order
dated 11.01.2022 in Crl.P.No.6906/2021 on bail has considered
the aspect of weightage to be given to the gravity of offence at
para-56 of the said order. The Court has also considered the
guidelines regarding grant of bail as found in para-64 of the
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judgment of Apex Court in the case of Arnab Manoranjan
Goswami v. State of Maharashtra and Others reported in
(2021) 2 SCC 427. The Court at paras-58 and 59 of the order
dated 11.01.2022 has also discussed relating to the case having
reached the advanced stage at the first instance, as the
witnesses were in fact examined in the Court.
31. Further, the Court has also observed at para-59 of
the order dated 11.01.2022 that the reasons for the witnesses
turning hostile and not having supported the case of the
Prosecution is a matter to be re-tested during trial, in light of
fresh investigation report submitted by the CBI, including the
statements of the very same witnesses with different versions
having been recorded under Section 161 of Cr.P.C.
32. The Court at para-60 of the order dated 11.01.2022
has also taken note of the time gap between the recording of
statement of witnesses under Section 161 of Cr.P.C. at the first
instance in the year 2016 and recording of statement of
witnesses in the year 2019 after CBI has taken over the
investigation, which would reflect the divergent stand of the
same witnesses.
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33. The other observations made by this Court in the
earlier order needs to be kept in mind, in particular, the
observations at para-73 as well. The observations made at para-
73 of the order dated 11.01.2022 in Crl.P.No.6906/2021 are
extracted herienbelow:-
"73. The order of the trial Court rejecting the
petition seeking to be enlarged on bail in
Crl.Misc.4267/2021 when perused would reveal that
the trial Court has taken note of the charge sheet
filed by the C.B.I. and concluded that there was
prima facie material to show involvement of accused
no.9 in the execution of murder of Yogesh Goudar.
The trial Court has referred to the seized C.C T.V.
footage and observed that the said C.C T.V. footage
cannot be discarded at the stage of considering the
bail. The trial Court has also observed that mere
completion of investigation and filing of charge sheet
cannot be a ground to allow the bail petition and if
the Court enlarges the petitioner on bail, even after
the prosecution establishes prima facie case, it would
convey wrong message to the society."
The above observations are required to be taken note of in the
present petitions also.
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34. Clearly, in the present petitions, even if the petitions
were to be examined independently, the reasoning made while
enlarging Accused No.9 on bail would hold good in the present
petitions also. As asserted earlier, the nature of imputation as
found in the charge sheet filed by the CBI extracted supra would
indicate the similarity of imputations. So also, the material relied
upon by the Investigating Agency as regards Accused No.9 as
well as Accused Nos.8, 10 and 13 are also similar.
35. Accordingly, on the principle of parity as well, these
petitioners are entitled to be enlarged on bail. In order to allay
the apprehension of Prosecution regarding the tampering of
witnesses, the same conditions as imposed while enlarging
Accused No.9 on bail vide order dated 11.01.2022 in
Crl.P.No.6906/2021 are also to be imposed on the present
petitioners as well.
36. In light of the above discussion, case is made out for
enlarging the petitioners on bail, subject to conditions.
In the result, Criminal Petition No.9742/2021 filed by
the petitioner-Accused Nos.8 and Criminal Petition No.649/2002
filed by the petitioners-Accused Nos.10 and 13 under Section
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439 of Cr.P.C. are allowed and the petitioners are enlarged on
bail in Spl.C.C.No.565/2021 in Crime No.17(S)/2019-CBI-BLR
(arising out of Crime No.135/2016 of Sub-urban Police Station,
Dharwad) pending on the file of LXXXI Addl. City Civil and
Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively
to deal with criminal cases related to elected MPs/MLAs in the
State of Karnataka) for the offences punishable under Sections
143, 147, 148, 120(B), 201, 302 red with Section 149 of IPC and
under Section 25 read with Sections 3, 5, 8 and 29 of Arms Act,
subject to the following conditions:-
i. The petitioners shall execute personal bond for
a sum of Rs.1,00,000/- (Rupees One Lakh
only) each with two sureties for the likesum
before the concerned Court;
ii. The petitioners shall not in any way impede
the conduct and proceedings of the
investigation and the trial.
iii. The petitioners shall not directly or indirectly
get in touch with any of the witnesses nor shall
they try to influence any such witnesses.
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iv. The petitioners shall not visit the City of
Dharwad till the trial is completed.
v. The petitioners shall mark their presence in the
Office of ACP CBI, Unit, Bengaluru once in a
week.
vi. Any infraction or violation of the above
conditions shall entail in cancellation of bail.
Sd/-
JUDGE
VGR
