Karnataka High Court

Ansu @ Ansar Ali vs State Of Karnataka on 10 August, 2023

Bench: K.Natarajan

                             1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF AUGUST, 2023

                            BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.6243 OF 2023

BETWEEN

ANSU @ ANSAR ALI
S/O G K ABDUL GAFUR
AGED 30 YEARS
R/AT HALLADAKERI
GUNDLULPET TOWN - 571 111              ... PETITIONER

(BY SRI HASHMATH PASHA, SENIOR ADVOCATE
 FOR SRI KARIAPPA N.A., ADVOCATE)

AND

STATE OF KARNATAKA
BY GUNDLUPET POLICE STATION
CHAMARAJ NAGAR DISTRICT - 571 313

(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.)
                                          ...RESPONDENT
(BY SRI P. THEJESH, HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CR.NO.198/2020 OF
GUNDLUPETE P.S., CHAMARAJANAGAR FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 120(B), 143, 147, 148, 109,
114, 504, 307, 341, 323, 324, 326, 302, 506(B), 212 READ
WITH SECTION 149 OF IPC PENDING ON THE FILE OF THE
PRINCIPAL     DISTRICT     AND      SESSIONS      JUDGE,
CHAMARAJANAGARA IN S.C.NO.5018/2020.
                                 2


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.08.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
                             ORDER

This petition is filed by the petitioner-accused No.1

under Section 439 of Cr.P.C., for granting regular bail in

Crime No.198/2020 registered by Gundlupet Police

Station, and charge sheeted for the offences punishable

under Sections 120B, 143, 147,148, 109, 504, 307, 341,

323, 324, 114, 326, 302, 506B, 212, 307 read with

Section 149 of IPC, now pending on the file of Principal

District and Sessions Judge, Chamarajnagar.

2. Heard the arguments of learned senior counsel

for the petitioner and learned High Court Government

Pleader for the respondent-State.

3. The case of the prosecution is that on the

complaint of one C.W.1-Muzibul Rehman, whose statement

was recorded in the hospital, the case has been registered.

It is alleged that accused No.6 said to be doing the

business of transporting cows and also said to be

transporting rice to the neighbouring State and the

deceased was said to be the obstacle for doing the

business by accused No.6, due to which, there was enmity.

On that back ground, on the date of incident at about 8.20

p.m., the complainant saw some of the accused persons

quarelling in front of one Imran Alias Niyat with C.W.2 -

his brother-in-law and his brother Zakaulla (deceased

No.1). The accused persons came in a car and bikes with

deadly weapons like chopper, long, knife and assaulted

one Zakaulla, Kaisar and Idris and all the said three

persons were murdered, and the complainant and four

other persons were injured. Accordingly, the police

arrested the petitioner, investigated the matter and filed

charge sheet. The petitioner is in custody from

04.06.2020, for almost more than 3 years. His bail petition

came to be dismissed by this Court on 08.03.2021 on

merits. Subsequently, the petitioner filed one more bail

petition in Criminal Petition No.11823/2022, which came to

be dismissed as withdrawn on 22.02.2023. The petitioner

is once again before this Court on the additional grounds.

4. Learned Senior Counsel for the petitioner has

contended mainly on three grounds, that, the co-accused

persons were already granted bail by the Co-ordinate

Benches of this Court. Subsequent to rejection of the bail

petition, the Co-ordinate Bench granted bail to accused

No.2 who is having the similar allegation and the other

accused persons also were granted bail by the Co-ordinate

Benches. Therefore, this petitioner is also entitled for bail

on the ground of parity. The second contention taken by

the learned Senior Counsel for the petitioner is that the

statement of eye witnesses under Section 164 of Cr.P.C.

has not stated the specific overt act against the petitioner

and none of them have named this petitioner in the FIR

and the statement. Therefore, this petitioner is also

entitled for bail on this ground. The third contention of

the learned Senior Counsel is that the petitioner is in

custody for almost more than 3 years and the trial is not

yet begun. The trial Court is simply adjourning the matter

and the prosecution has not recorded the evidence of the

witnesses. The speedy trial is guaranteed under the

Constitution. Therefore, there is delay in trial and hence,

he is entitled for bail. Accordingly, prayed for allowing the

petition.

5. Per contra, learned High Court Government

Pleader has seriously objected the petition and contended

that this Court has already rejected the bail petition of the

petitioner on merits by considering the ground of parity

and the other grounds. Therefore, there is no additional

ground made out by the petitioner to grant bail. The

learned High Court Government Pleader also contended

that there were triple murder committed by the accused

persons apart from causing the injuries and attempt to

commit murder of the complainant and also 4-5 other

injured persons. Therefore, prayed for rejecting the

petition.

6. Having heard the arguments of learned counsel

for the parties, perused the records. On perusal of the

records, it reveals that, on 26.05.2020 when the

complainant was near the house, his brother Zakaulla

came near the house and they were talking each other.

The complainant said to be told his brother not to drink

any alcohol, etc. Accused No.6, who came there,

quarreled with the deceased. Subsequently, accused No.6

went inside the house and telephoned to some persons.

Accordingly, around 18 persons came there in a car as well

as on the motor cycles and started assaulting the brother

of the complainant i.e. Zakaulla and when the complainant

went there, they also assaulted him and his brother-in-law.

Likewise, the accused persons committed the murder of

two other persons namely, Kaisar and Idris, apart from

causing injuries to C.Ws.2, 9, 10, 11, 12. All of them were

shifted to the hospital. The accused ran away from the

spot due to the assault. There were 19 persons involved in

the crime. Most of the accused persons were arrested

and granted bail by the Co-ordinate Benches of this Court.

7. This Court while considering the bail petition of

the petitioner in Criminal Petition No.1029/2021 decided

on 08.03.2021 has considered the entire case on merits,

including the parity ground urged by the learned Senior

Counsel, as per the findings recorded in paragraphs 8, 9

and 10 of the order passed in the aforesaid criminal

petition. Of course, in the statement of some of the

witnesses under Section 164 of Cr.P.C., the name of the

petitioner has not been mentioned, but they have stated

that the person came with accused No.2, stabbed Zakaulla

on the chest, though the other accused also assaulted

Zakaulla. On perusal of the post mortem report, there

were injuries on the chest of the deceased, i.e. injury

Nos.3, 4, 5, 6, 7 and 8, all reveal that this petitioner

stabbed on the chest of the deceased Zakaulla, 4-5 times,

which caused his death. Therefore, the arguments of the

learned Senior Counsel that there is no multiple injury on

the chest, is not correct and not acceptable. The

statement of the witnesses under Section 164 of Cr.P.C.

especially C.W.10 has categorically stated the name of the

petitioner. The other witnesses have stated that the person

came with accused No.2, stabbed on the chest of Zakaulla.

The investigation officer has stated that the petitioner is

the main cause for committing the death of Zakaulla and

assaulting the other persons. Therefore, the Co-ordinate

Benches have considered these aspects while granting bail

to accused No.2. Therefore, this Court considering the

order passed by the Co-ordinate Benches, rejected the bail

petition of the petitioner on the earlier occasion. Therefore,

the contention of the learned Senior Counsel for the

petitioner that the petitioner is entitled for bail on the

ground of parity and the witness have not identified the

accused, cannot be acceptable. Though the learned

Senior Counsel for the petitioner has filed the copy of the

remand application of the petitioner and others, but the

remand application cannot be looked into at this stage as

the police have already investigated the matter and filed

charge sheet. This Court rejected the bail petition of the

petitioner on an earlier occasion on merits. Such being the

case, the remand application cannot be considered at this

stage.

8. As regards the third ground urged by the learned

Senior Counsel for the petitioner is that the trial Court is

not conducting the trial in spite of the accused is in

custody and simply adjourning the matter even when the

witnesses were present and therefore, there was delay in

disposal of the case and hence, the petitioner is entitled for

bail. In this regard, the learned Senior Counsel has

produced the order sheet of the trial Court. On perusal of

the order sheet, the accused persons were produced

before the Sessions Judge through Video conferencing on

22.10.2020. Thereafter, the matter went on adjourned

(the petitioner's counsel has not produced the entire order

sheet, but produced only order sheet from 05.12.2022).

On perusal of the order sheet dated 05.12.2022, it shows

that the accused persons present and some of the accused

persons filed an application under Section 227 of Cr.P.C.

and the matter went on adjourned, at the request of

learned counsel for the accused. Thereafter, the trial

Court passed an order on 19.12.2022 by rejecting the

application filed by accused No.5 under Section 227 of

Cr.P.C. Thereafter, accused No.6 filed the similar

application for discharge, which came to be dismissed on

03.01.2023. Thereafter, the trial Court framed the charges

on the same day. Subsequently, on 31.01.2023,

summons was issued to C.W.1 and on 01.03.2023,

accused were not produced from the judicial custody, the

other accused were remained absent and an exemption

application was filed, thereafter, the matter was

adjourned.

9. On 27.03.2023, accused Nos.1 and 5 were

produced, and accused No.6 was absent. An exemption

application was filed and it was allowed and one of the

accused, filed bail application. Thereafter, on 12.04.2023,

the bail application of accused No.5, came to be rejected

and posted the matter on 03.05.2023. Accordingly, on

03.05.2023, accused No.2 was absent, accused Nos.1 and

5 were produced from the judicial custody. C.W.1-the

complainant and C.W.2 were also present. The learned

counsel for the accused ASSR and DKM requested for an

adjournment. Accordingly, the case was adjourned by the

trial Court at the request of the learned counsel for the

accused on 03.05.2023. Thereafter, on 19.06.2023, again

two of accused persons remained absent and notice was

issued to some of the accused persons and C.Ws.1 and 2

were present and they were sent back. Again, the learned

advocate for the petitioner requested time for conducting

the trial. It is also submitted by the learned counsel that,

even on 26.7.2023, the case was adjourned to September

2023. The learned counsel has also produced the case

status extract which reveals that the trial Court adjourned

the matter from 26.07.2023 to 11.09.2023 by issuing

summons to C.W.1.

10. On perusal of the submissions made by the

learned counsel that due to delay in conducting the trial,

the petitioner is entitled for bail, cannot be acceptable,

since the petitioner is involved in serious triple murder

case and assaulted five persons in causing the grievous

injuries, simple injuries and an attempt to commit murder.

The same cannot be taken lightly and grant bail. That

apart, the very learned counsel for the accused appearing

in the trial Court requested the trial Court to adjourn the

matter when C.Ws.1 and 2 were present before the Court

for more than two dates. Such being the case, the learned

counsel for the accused cannot blow hot and cold, that on

one hand, taking adjournments in the trial Court and on

the other hand, seeking bail on the ground of delay in the

trial and that, cannot be acceptable.

11. It is observed by this Court from the order sheet

of the trial Court, that when C.Ws.1 and 2 were present,

the trial Court ought not have adjourned the matter on the

request of learned counsel for the accused without

assigning any reason, which amounts to violation of the

mandate under Section 309 of Cr.P.C. This Court wants to

draw the attention and to refer the judgment of the

Hon'ble Supreme Court in the case of STATE OF U.P. Vs.

SHAMBUNATH SINGH AND OTHERS reported in AIR

2001 SC 1403, wherein the Hon'ble Supreme Court at

para 11 and 12, has held as under:

" 11. The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words "as expeditiously as possible" have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub-section by using the words "as expeditiously as possible" has chosen to make the requirement for the next stage (when examination of the witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination "shall be continued from day to day until all the witnesses in attendance have been examined". The solitary exception to the said stringent rule is, if the court finds that adjournment "beyond the following day to be necessary" the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the

second proviso to sub-section (2) has imposed another condition, "provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing".

                                           (emphasis supplied)

     12. Thus,      the    legal   position     is    that     once

examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court."

12. The Hon'ble Supreme Court in the similar

situation in the case of RAJDEV SHARMA (II) Vs. STATE

OF BIHAR reported in 1999(7) SCC 504, at paragraphs

16, 17, 18 and 19, has held as under:

"16. In Raj Deo Sharma (II) v. State of Bihar this Court pointed out that the trial court cannot be permitted to flout the mandate of Parliament unless the court has very cogent and strong reasons and no court has permission to adjourn examination of witnesses who are in attendance beyond the next working day. A request has been made by this Court to all the High Courts to remind all the trial Judges of the need to comply with Section 309 of the Code. The request is in the following terms: (SCC p. 614, para

14) "14. We request every High Court to remind the trial Judges through a circular of the need to comply with Section 309 of the Code in letter and spirit. We also request the High Court concerned to take note of the conduct of any particular trial Judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits."

17. We believe, hopefully, that the High Courts would have issued the circular desired by the Apex Court as per the said judgment. If the insistence made by Parliament through Section 309 of the Code can be adhered to by the trial courts there is every chance of the parties cooperating with the courts for achieving the desired objects and it would relieve the agony which witnesses summoned are now suffering on account of their non-examination for days."

13. The case status produced by the learned Senior

Counsel reveals that though C.Ws.1 and 2 were sent back

by the trial Court without examining them, but once again,

the summons was issued only to C.W.1, which reveals that

the trial Court being a Sessions Judge has not fixed the

trial as per Chapter XVIII of Cr.P.C. and issued summons

to C.W.1 like a warrant trial before the Magistrate. In

view of the judgments of the Hon'ble Supreme Court cited

supra, it is necessary for this Court to issue a direction to

the trial Court to dispose of the case by fixing the trial on

day-today basis, without sending back the witnesses. In

view of the above observations, the petitioner has not