Chetan @ Chetankumar vs The State Of Karnataka
2023 Latest Caselaw 6017 Kant

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF AUGUST, 2023

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

            CRIMINAL PETITION NO.6745/2023

BETWEEN:

1.     CHETAN @ CHETANKUMAR
       S/O LATE SHIVANNA M.L.,
       AGED ABOUT 36 YEARS,
       R/O 4TH CROSS, V.V. NAGAR,
       MANDYA CITY,
       TALUK AND DISTRICT
       MANDYA - 571 401.

2.     SHIVAPRASAD
       S/O LATE SOMANNA L.
       AGED ABOUT 27 YEARS,
       R/O 4TH CROSS,
       V.V.NAGAR, KALLAHALLI
       MANDYA CITY,
       TALUK AND DISTRICT
       MANDYA - 571 401.                   ... PETITIONERS

          (BY SRI G.VEERANNA G.TIGADI, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REP. BY SUB INSPECTOR OF POLICE,
       MANDYA WEST POLICE STATION,
       MANDYA TALUKA AND DISTRICT
       REPRESENTED BY STATE PUBLIC PROSECUTOR,
                                 2




     HIGH COURT OF KARNATAKA,
     BANGALORE - 560 001.
                                                ... RESPONDENT

              (BY SRI K.NAGESHWARAPPA, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ALLOW THE PETITION BY GRANTING
HIM BAIL IN MANDYA WEST POLICE STATION CR.NO.70/2021
(SESSIONS CASE NO.84/2021) FOR THE OFFENCES P/U/S. 143,
147, 148, 323, 324, 341, 342, 504, 506, 302 R/W SEC. 149 OF
IPC, 1860 AND SEC. 75 OF JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2015, PENDING ON THE FILES
OF THE LEARNED I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, MANDYA.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.08.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                          ORDER

Heard the petitioners counsel and also the counsel

appearing for the respondent-State.

2. This is a successive bail petition filed by accused Nos.5

and 6 and these petitioners earlier have approached this Court

by filing Criminal Petition No.10186/2021 and this Court has

rejected the bail petition vide order dated 14.1.2022 and in

paragraph No.6 of the judgment while rejecting the bail petition

made an observation that when the specific allegations are made

against these two accused persons that they have inflicted injury

with the handle of the spade as well as wooden stick and taking

note of the factual aspects of bail granted in favour of other

accused persons, which has been referred supra, the allegation

against them is that they assaulted with their hands and the

same is found in column No.17 and when such being the factual

aspects of the case, it cannot be held that the petitioners are

entitled for bail on the ground of parity.

3. Now fresh petition is filed on the ground of parity again

and though made the ground on merits and counsel mainly

contend that similar allegations made against accused No.4 and

he has been granted bail in Criminal Petition No.5511/2022

contending that these petitioners are also entitled for bail on the

ground of parity. The counsel referred the said order wherein

prosecution case is not discussed and only extracted the order of

Criminal Petition No.8964/2021 and in paragraph No.5 comes to

the conclusion that the Co-ordinate Bench in Criminal Petition

No.8964/2021 dated 10.12.2021 on the ground of parity is

entitled for bail on the ground that most of the accused have

already been enlarged on bail.

4. The counsel also on questioning him whether he has got

a copy in Criminal Petition No.8964/2021, since the bail is

granted based on the said order, produced the same before the

Court i.e. in respect of accused Nos.3 and 8, wherein the Co-

ordinate Bench of this Court made an observation that

investigation has been completed and charge sheet has also filed

and some of the accused are also enlarged on bail and on the

ground of parity, the petitioners are also entitled for bail, as the

main accused No.1 who caused the injury said to be committed

death of the decease and the same is taken on record.

5. The contention of the counsel appearing for the

petitioners that when the accused No.4 has been granted bail

and similar allegations made against these petitioners also, they

may be enlarged on bail. The counsel also would contend that

except accused Nos.1, 5 and 6, all are enlarged on bail and

hence these petitioners may be enlarged on bail on the ground

of parity.

6. Per contra, the counsel appearing for the State would

contend that in the said order the Co-ordinate Bench has not

discussed anything about the overt act of accused No.4 and

specific overt act is made against him that he inflicted injury

with the heavy wooden pound and when the same is not

discussed in the order of the Co-ordinate Bench, the same

cannot be relied upon to extend the benefit of parity. The

counsel also vehemently contend that accused Nos.3 and 8 who

have been enlarged on bail in Criminal Petition No.8964/2021,

an observation is made that accused No.1 who caused the injury

said to be committed death of the deceased and also not

discussed anything about the role of accused Nos.3 and 8 in the

said order also and hence the said order also cannot be relied

upon to grant the bail on the ground of parity.

7. The counsel would vehemently contend that in column

No.17 of the charge sheet specific overt act allegation is made

against these two petitioners that they inflicted injury with

wooden stick and also the handle of the spade and also there

were 13 multiple injuries and cause of death is also on account

of shock and hemorrhage as a result of multiple injuries

sustained.

8. The learned High Court Government Pleader also would

contend that bamboo wooden stick, heavy round wooden pound

and moderately heavy round wooden club are seized and the

same are sent to the FSL and the FSL report is also clear that

injury Nos.1 to 13 are sustained by using wooden pound and

wooden club and also flat bamboo wooden piece and these

weapons are used by these petitioners also and injuries

correspondence with the said weapons which were seized at the

instance of these petitioners and hence, the petitioners are not

entitled for bail.

9. Having heard the petitioners counsel and also the

counsel appearing for the State and also considering the orders

passed by the Co-ordinate Bench of this Court granting bail in

favour of accused Nos.3, 4 and 8, this Court has to consider the

material on record and having perused the same, the points that

would arise for consideration of this Court are:

i) Whether these petitioners have made out the ground to enlarge them on bail on the ground of parity?

ii) What order?

10. Having perused the case of the prosecution against

these petitioners in column No.17, a specific overt act by using

flat bamboo stick and wooden stick i.e., handle of the spade are

used by accused Nos.5 and 6. The petitioners are accused Nos.5

and 6 herein. No doubt this Court granted bail in favour of

accused Nos.3 and 8 in Criminal Petition No.8964/2021, wherein

an observation is made that main accused No.1 who caused

injury said to be committed death of the deceased and nothing is

discussed with regard to the overt act of accused Nos.4, 5 and 6

and accused Nos.3 and 8 are petitioners in the said petition and

an allegation against them is that they assaulted with their

hands and hence enlarged them on bail. It is unfortunate that

Co-ordinate Bench while granting bail in favour of accused No.4

in Criminal Petition No.5511/2022 nothing is discussed with

regard to the overt act made by accused No.4 and instead, only

extracted the order passed in Criminal Petition No.8964/2021

paragraph Nos.3 to 6 and in paragraph No.5 without discussing

the specific overt act made by accused No.4, only comes to the

conclusion that most of the accused have been enlarged on bail

and referring that order, parity is applied and granted bail.

11. Having perused the accusation made against accused

Nos.4, 5 and 6 in column No.17 of the charge sheet, as against

accused No.4 stated that heavy round wooden pound was

recovered at the instance of accused No.4 and he inflicted injury

with the same on his chest, legs and on his back and against the

present petitioners herein accusation is that, with the bamboo

wooden stick assaulted on all over the body and specifically

accused Nos.5 and 6 is concerned, both of them have assaulted

with handle of the spade and also with the bamboo stick on all

over the body i.e. on the vital parts of chest and also on the

head. When the specific overt act is made against them that

they assaulted with deadly weapon like heavy round wooden

pound and as against these two petitioners with handle of the

spade and also with bamboo stick and the same is considered by

this Court earlier in rejecting the bail petition in Criminal Petition

No.10186/2021 and also in paragraph No.6, observed that a

specific allegation is made against them that they inflicted injury

with the handle of the spade as well as wooden stick and bail

granted in favour of other accused persons, only against them

that they assaulted with their hands and hence, rejected the bail

petition earlier also on the ground that the Court cannot grant

bail on the ground of parity against these petitioners that they

used deadly weapons of handle of the spade as well as bamboo

stick.

12. Now the main contention of the petitioners counsel

that accused No.4 similarly placed was granted bail, this Court

has to grant bail on the ground of parity. I have already pointed

out that, it is unfortunate that in the said petition, the Co-

ordinate Bench has not discussed anything about the case of the

prosecution and charges made against the accused No.4 is that

he inflicted injury with heavy round wooden pound. Only in one

sentence on the ground of parity observed that, most of the

accused have been enlarged on bail and most of the accused

have been granted bail and the only allegation against them is

that they assaulted with their hands, but specific overt act

against accused No.4 is that he inflicted injury with the heavy

round wooden pound and the same is not discussed in the order

and hence this Court cannot rely upon the order passed in

Criminal Petition No.5511/2022 to invoke the parity, so also in

the other Criminal Petition No.8964/2021 is also in respect of

accused Nos.3 and 8 and allegation is that they assaulted with

their hands and no doubt an observation is made that on

account of act of accused No.1 who caused injuries said to be

committed death of the deceased. Even though the overt act of

these two petitioners was not referred in the order, taking into

note of only allegation that assaulted with their hands, exercised

the discretion. The said order also not comes to the aid of the

petitioners herein, since specific over act is made against these

two petitioners that they inflicted injury with the deadly weapons

i.e. handle of the spade as well as the bamboo stick and the

same is also considered in the earlier Criminal Petition

No.10186/2021 and there is no any changed circumstances to

entertain the successive bail petition as contended by the

petitioners, even on the ground of parity.

13. This Court would like to refer the judgment of the Apex

Court in the judgment of Ramesh Bhavan Rathod Vs.

Vishanbhai Hirabhai Makwana (Koli) and Another reported

in (2021) 6 SCC 230 and Apex court held that while

considering the bail on the ground of parity of co-accused held

that while applying the principles of parity, the Court cannot

exercise its powers in a capricious manner and has to consider

totality of circumstances before granting bail. It is further

observed that, while granting bail on parity, 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 (as done by High Court in present

case) is not sufficient to determine whether bail can be granted

on 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.

14. The Apex Court has further held that, whether order

granting bail can be relied on as a precedent, when and how to

be decided, and held that whether order granting bail is a

precedent is a matter for future adjudication and when

application for bail is moved on grounds of parity on behalf of

another accused. In the event that parity is claimed in such case

thereafter, it is for that court before whom parity is claimed to

determine whether case for grant of bail on grounds of parity is

made out. Order granting bail to one of the accused observing

that such order shall not be treated as precedent to claim bail on

basis of parity in any other case and legality of whether parity

can be claimed by any other accused on basis of order granting

bail ought not to have been prejudged who was dealing only with

application for grant of bail to other accused. Observation that

grant of bail to other accused shall not be considered as

precedent for any other person who is accused in FIR on grounds

of parity does not constitute judicially appropriate reason and is

erroneous. The Apex Court also held that seriousness and

gravity of offences committed and severity of punishment in

event of conviction is at most important. Failure of High Court to

consider while granting bail and in the absence of reasons order

granting bail in present case, held, perverse and Apex Court set

aside the order.

15. In the present case on hand also, when the orders are

placed before this Court seeking an order on the ground of parity

and I have already pointed out that it is unfortunate that case of

the prosecution is not discussed in the order and also role of the

other accused No.4 has not been taken note of in the order and

no reasons have been assigned except an observation that other

accused have been enlarged on bail and fails to take note of the

very overt act of the accused and hence, the judgment of the

Apex Court is aptly applicable to the case on hand that while

applying the principles of parity, Court cannot exercise its

powers in a capricious manner and has to consider the totality of

circumstances before granting bail. It is also specific that while

granting bail on the ground of parity, must focus upon role of

accused and while deciding aspect of parity, role attached to

accused, their position in relation to incident and the victims is of

at most importance.

16. In the case on hand, specific overt act allegation is

made against these two petitioners that they inflicted injury with

the handle of spade and also with the bamboo stick and also the

doctor's opinion is very clear that the said nature of injuries

could be caused by using the bamboo stick and also the heavy

round wooden pound and also the handle of the spade which

were used and opinion of the FSL is also very clear that injury

Nos.1, 5, 9, 10, 11, 12 and 13 could be caused by the type of

wooden pound and wooden club and also injury Nos.2, 3, 4, 6, 7

and 8 could be possible to sustain when assaulted with flat

bamboo wooden pieces which have been examined and hence,

not only the injuries are multiple in nature i.e. 13 in number and

cause of death is due to shock and hemorrhage as a result of

multiple injuries sustained and apart from that, FSL report also

corresponds with nature of injuries sustained by the victim with

the weapons which have been seized at the instance of these

petitioners. Hence, I do not find any ground to exercise the

discretion in a successive bail petition to enlarge the petitioners

on bail on the ground of parity considering the order passed in

Criminal Petition No.5511/2022, wherein nothing is discussed,

the role of accused No.4 in the order and the same cannot be a

basis for granting bail in favour of petitioners No.5 and 6 on the

ground of parity in view of the principles laid down in the

judgment of the Apex Court referred (supra). Hence, I answer

the point as negative.

17. In view of the discussions made above, I pass the

following:

ORDER

Criminal Petition is rejected.

Sd/-

JUDGE

AP