Karnataka High Court
Asif @ Ashasab vs State Bharamasagara Police Station on 19 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:46249
CRL.P No. 12147 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO. 12147 OF 2023
BETWEEN:
1. ASIF @ ASHASAB,
S/O GOODUSAB,
AGED ABOUT 21 YEARS,
R/AT NEAR GOVT SCHOOL,
BASAVAPATTANA VILLAGE,
GANGAVATHI TALUK,
KOPALA DISTRICT-583 231.
2. RANGANATHA,
S/O PARUSHURAMA,
AGED ABOUT 21 YEARS,
LORRY DRIVER,
R/AT SIDDIKERE CAMP,
GANGAVATHI TALUK,
KOPPALA DISTRICT-583 231.
...PETITIONERS
Digitally (BY SRI. GIREESHA .R.J, ADVOCATE)
signed by
SOWMYA D AND:
Location: STATE BY BHARAMASAGARA POLICE STATION,
High Court CHITRADURGA-577 522,
of Karnataka REPRESENTED BY HCGP,
HIGH COURT OF BUILDING,
BENGALURU-560 001.
...RESPONDENT
(BY SRI. JAIRMA SIDDI, HCGP)
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NC: 2023:KHC:46249
CRL.P No. 12147 of 2023
THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN S.C.NO.8/2023 IN
CR.NO. 201/2022 OF BHARAMASAGARA POLICE STATION,
CHITRADURGA FOR THE OFFENCE P/U/S 395, 342, 504, 506
OF IPC, IN I ADDL. DISTRICT AND SESSIONS JUDGE,
CHITRADURGA.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Petitioners filed this petition under Section 439 of
Code of Criminal Procedure (hereinafter referred to as
'Cr.P.C' for short) for enlarging them on bail in Crime
No.201/2022 of Bharamsagar Police Station registered for
the offences punishable under Section 395, 342, 504 and
506 of Indian Penal Code, 1860 pending on the file of I
Additional District and Sessions Judge, Chitradurga in
S.C.No.8/2023 and S.C.No.23/2023.
2. Heard the learned counsel for the petitioner and
learned High Court Government Pleader for respondent /
State. Perused the records.
3. The learned counsel for the petitioner would
contend that all other accused have been granted bail by
the coordinate bench and the trial is also commenced
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wherein the complainant and other recovery mahazar
witnesses have turned hostile. Hence, he would contend
that the petitioner may be granted bail subject to terms
and conditions to be imposed by this court.
4. Per contra, the learned High Court Government
Pleader for respondent / State seriously opposes the bail
petition on the ground that the petitioner No.1 has chased
the vehicle in the car and property was recovered from his
custody, while petitioner No.2 / accused No.7 brought the
lorry in which the robbed goods were subsequently
transferred and there is recovery from his custody also. He
would contend that the matter is at the stage of trial and
mere hostility of some of the witnesses cannot be treated
as changed circumstances as the initial bail petition filed
by the petitioner during the crime stage as well as
subsequent to submission of charge sheet were rejected
and no changed circumstances are forthcoming. Hence, he
would request for rejection of the bail petition.
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5. The allegations of the prosecution disclose that
on 27.06.2022 at about 3.40 a.m. near Bharamsagar
Golarahatti, the complainant was driving the lorry bearing
registration No.KA-06/AA-7627 loaded with Vimal Pan
masala bags belonging to Siddi Agency in order to deliver
the same to S.S.Traders at Davanagere. It is alleged that
near Bharamsagara Golarahatti, a car has over taken the
lorry and it is intimated / signed that the back door of the
lorry was open. Considering this information, the
complainant stopped the lorry and inspected the door, but
it was found to be in tact. Suddenly, the four persons from
car got down and surrounded the complainant and his
hands and mouth were tied, then they have also
threatened the driver who was sleeping in the lorry and his
hands were tied and cello tape was pasted to their face.
They were threatened by showing the knife and then they
drove the lorry towards Bharamsagar village, near old
P.B.Road. In Bharamsagar in front of a puncture shop, the
lorry driven by the petitioner No.2 / accused No.7 came
there and the goods which were loaded in the lorry of the
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complainant were re-loaded to the lorry bearing
registration No.KA-37-B-4045 brought by petitioner No.2
and thereafter, they all fled. It is further the case of the
prosecution that the robbed goods were worth of
Rs.18,60,375/- and the petitioner No.1 was driving the car
and subsequently, both of them were apprehended and
the material objects were recovered from them.
6. The allegations of the prosecution disclose that
petitioner No.2 has approached this court in
Crl.P.No.10511/22 and this court by order dated
18.11.2022 dismissed the said petition. It is also evident
that prior to that he has approached the Learned Sessions
Judge thrice and his bail petitions were rejected. Now the
allegations were that the trial is in progress and material
witnesses including the complainant have turned hostile. It
is further asserted that the other accused were granted
bail by coordinate bench, but rejection order of this Court
was not placed before the coordinate bench and that
finding cannot be a ground for admitting the present
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petition on bail in this case as no changed circumstances
are forthcoming. The records further disclose that 2 bags
containing Vimal Pan Masala packets worth of Rs.38,000/-
were recovered from the custody of the present petitioner
and the charge sheet was later on submitted. Though it is
submitted that mahazar witnesses have turned hostile and
trial is in progress, but the hostility of mahazar witnesses
cannot be a ground for admitting the petitioner on bail and
it can be considered in other way also that the petitioners
are capable of managing the witnesses even in their
absence. Further, no changed circumstances were
reported and granting the bail by coordinate bench or
commencement of trial cannot be termed as changed
circumstances.
7. The bail petition filed by the petitioner No.1 was
also rejected and he was charge sheeted as accused No.5.
The records disclose that he was driver of the car bearing
registration No.KA-11-B-5186, which was used for
commission of the robbery. Further, the vehicle was
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recovered from the custody of the accused and 2 gunny
bags along with 2 knives. Further 2 gunny bags were
found to be containing the Vimal tobacco packets worth of
Rs.53,882/- and the same was recovered from the custody
of accused No.5 / petitioner No.1 herein. The hostility of
mahazar witnesses cannot be taken note of at this
juncture as the trial is in progress. Further, if the court
expresses any opinion regarding merits of the case, it is
likely to affect the trial also. Apart from that the Apex
Court has held that the hostility of the mahazar witnesses
cannot be a ground and the recovery can be proved even
on the basis of the evidence of the Investigating Officer
and that is required to be considered. Since, the matter is
at the stage of trial, in my considered opinion, this is not a
fit case wherein the discretion can be exercised at this
juncture and the granting of bail to other accused cannot
be termed as changed circumstances to apply the
principles of ground of parity in the instant case.
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8. At the fag end, when the matter is being
dictated, it is submitted by learned counsel for the
petitioner that the trial court has already concluded and
matter is posted for judgment. In that event, he should
have waited till the judgment is pronounced but when the
matter is reserved for judgment; he has approached this
court on the ground of hostility of witnesses, which
discloses the intention of the petitioners.
Considering these facts and circumstances, the
petition being devoid of any merits does not survive for
consideration and accordingly, petition stands dismissed.
Sd/-
JUDGE
DS/SS
