Abdul Majeed vs State Of Karnataka
2023 Latest Caselaw 935 Kant

                             1

                                                      R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16th DAY OF JANUARY, 2023

                           BEFORE

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

             CRIMINAL PETITION NO.10830/2022

BETWEEN:

ABDUL MAJEED
S/O LATE ABDUL WAHEED
AGED ABOUT 35 YEARS
R/A NO.253/A, 10TH CROSS
NEAR HYDERALLI PARK
GHOUSIYANAGAR
MYSURU-570019.                              ... PETITIONER

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

STATE OF KARNATAKA
BY UDAYAGIRI POLICE STATION
MYSURU-570019
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.                          ... RESPONDENT

             (BY SRI K.K.KRISHNA KUMAR, HCGP)



       THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
                                  2



CR.NO.178/2021 OF UDAYAGIRI P.S., MYSURU CITY FOR THE
OFFENCES P/U/S. 143, 144, 147, 148, 341, 342, 323, 324, 364,
307, 302, 506 R/W 149 OF IPC.


      THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.01.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:



                            ORDER

Heard the learned counsel appearing for the petitioner and

the learned High Court Government Pleader appearing for the

State.

2. This is a successive bail petition and earlier, this

Court considered the bail petition filed in Crl.P.No.4008/2022 on

merits after filing of the charge-sheet and dismissed the same

vide order dated 01.07.2022 and now the present successive bail

petition is filed contending that the name of this petitioner is not

mentioned in the FIR and also in the requisition Form No.146(i)

and (ii) sent to doctor for post-mortem which is prepared after

inquest. It is also contended that at the earliest point of time

when the injured deceased was taken to Narayana Hrudalaya

hospital and got admitted, while giving history, the name of the

petitioner is not mentioned as one of the assailant and only this

petitioner has been implicated after five days of the incident that

is on 20.08.2021. Only one eye-witness i.e., CW19 though his

statement alleged to have been recorded on 16.08.2021, there is

no reference in any of the remand application in the case diary

for having recorded on that day and no details in remand

applications dated 16.08.2021 and 20.08.2021 and no overt act

of assault is attributed against this petitioner but in the

statement of the eye-witness CW19, the alleged overt act is

improved and added at the time of filing of the charge-sheet.

The improved version is contrary to mobile video recordings

which is relied as electronic evidence and presence of this

petitioner is not there. When the prosecution relies on the

mobile video as one of the document and relied on the pen

drive, ought to have been furnished to the accused. But the

same has not been furnished. Since this petitioner is the

brother-in-law of accused Nos.1 and son-in-law of accused No.2,

while implication of accused Nos.1 to 3, at belated stage, this

petitioner also has been subsequently added as accused No.5.

This petitioner is in judicial custody since 20.08.2021 and the

case of the petitioner is similar to accused No.7, 8 and 4 who

have been enlarged on bail and on the ground of parity, this

petitioner is entitled for the bail and no any bad antecedents

against this petitioner.

3. The learned counsel appearing for the petitioner

would submit that in the spot mahazar, no details of presence of

this petitioner and in the remand application also not named this

petitioner and no overt act as per CC TV mahazar except

discloses that he was present at the spot of the incident. These

grounds are not urged earlier hence, in the successive bail

petition, the same grounds are urged.

4. The learned counsel appearing for the petitioner also

filed a memo along with mahazar and pen drive which was

drawn on 20.08.2021 regarding seizure of mobile and brought to

notice of this Court to paragraph 2 of page 4 to show that no

overt act allegation against this petitioner and in the video of 1

minute 30 seconds which was played narrated that what has

been found in the said video and no details with regard to this

petitioner except questioning the victim that how many girls

were subjected to the harassment and why he had done the

same to their girl and contended that no overt act allegation

against this petitioner except the presence of the petitioner at

the time of committing the murder.

5. The learned counsel appearing for the petitioner in

support of his arguments, relied upon the judgment of the Apex

Court in the case of BABU SINGH AND OTHERS vs STATE OF

UP reported in (1978) 1 SCC 579 wherein it is held regarding

refusing an application for bail does not necessarily preclude

another on a later occasion giving more materials, further

developments and different considerations. The learned counsel

also relied upon the judgment of the Apex Court in the case of

LT. COL. PRASAD SHRIKANT PUROHIT vs STATE OF

MAHARASHTRA reported in (2018) 11 SCC 458 wherein the

Apex Court discussed with regard to though an accused has a

right to make successive applications for grant of bail, the Court

entertaining such subsequent bail applications has a duty to

consider the reasons and grounds on which the earlier bail

applications were rejected. In such cases, the Court also has a

duty to record the fresh grounds which persuade it to take a

view different from the one taken in the earlier applications. The

learned counsel for the petitioner also relied upon the judgment

of the Apex Court in the case of DATARAM SING vs STATE OF

UTTAR PRADESH AND ANOTHER reported in (2018) 3 SCC

22 wherein the Apex Court held that a fundamental postulate of

criminal jurisprudence is the presumption of innocence, meaning

thereby that a person is believed to be innocent until found

guilty and brought to notice of paragraph 15 of the judgment.

The counsel also relied upon the judgment in the case of UNION

OF INDIA vs K A NAJEEB reported in (2021) 3 SCC 713 and

brought to notice to the principles of law laid down in the

judgment as presence of statutory restrictions like Section 43-

D(5) of the UAPA per se does not oust the ability of the

constitutional Courts to grant bail on grounds of violation of Part

III of the Constitution. Indeed, both the restrictions under a

statute as well as the powers exercisable under constitutional

jurisdiction can be well harmonized. The counsel also relied upon

the unreported decision of this Court in Crl.P.No.3263/2020

regarding statements of the witnesses are stated to have been

recorded on 24.01.2020 and in none of the remand applications

dated 28.01.2020, 30.01.2020, 31.01.2020 and 01.02.2020,

there is any reference to the recording of the statements of the

said eye-witnesses. The counsel also relied upon the unreported

decision of this Court in Crl.P.No.8686/2018 and brought to

notice of this Court paragraph 6 wherein observed that taking

prima facie view of the matter including the investigation,

noticing that there is no mention of recording of statements of

CW2 and CW3 and that the charge sheet against the accused

rests primarily on the statements of CW2 and CW3, proof of said

statements and veracity of the same is a matter for trial,

question of identity of the accused is also a matter of trial. The

counsel referring these judgments vehemently contend that the

principles laid down in the judgments referred supra are aptly

applicable to the case on hand.

6. Per contra, learned High Court Government Pleader

appearing for the State would vehemently contend that all these

grounds which have urged in the present successive bail petition

are already urged before this Court in the earlier bail petition

and this Court having considered the material on record in

paragraph 6 taken note of the fact that his name was not found

in the FRI and implication of the name of this petitioner after five

days and also contended that CW19 statement was though

recorded on 16.08.2021, the same was not suffering from any

infirmities and also taken note that this petitioner has been

implicated subsequently not at the first instance but taken note

of the fact that blood stain cloth was seized of this petitioner and

the same was sent to FSL and FSL report came positive and

apart from that an eye-witness statement was taken into

account which was recorded on the next date of the incident and

also relied upon the mobile video which was seized from accused

No.3 and the same discloses the very presence of this petitioner

and overt act of each of the accused persons and considered the

petition on merits hence, there is no changed circumstances and

this Court has given the reasons while rejecting the bail

application and there are no fresh grounds of changed

circumstances to enlarge the petitioner on bail. Hence, prayed

to reject the bail application.

7. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material available

on record it is not in dispute that this Court earlier rejected the

bail petition of this petitioner on merits after filing of the charge-

sheet in Crl.P.No.4008/2022 vide order dated 01.07.2022. This

petitioner was arraigned as accused No.5. This Court while

dismissing the earlier petition taken note of the grounds which

have been urged that his name was not found in the FIR at the

first instance and the eye-witness-CW19 was also taken along

with the victim in the car and CW19 has narrated that the

petitioner was very much present at the time of the incident and

the manner in which accused persons inflicted the injuries. The

complainant also made specific averments in the complaint with

regard to inflicting of injuries which he came to know about the

incident from eye-witness CW19. The only grounds urged before

this Court in the present petition that the remand application

does not disclose the involvement of this petitioner and also

other grounds that no overt act against this petitioner and

mobile seized also not discloses the very presence of the

petitioner. The said contention cannot be accepted for the

reason that in the seizure mahazar of mobile which is produced

by the petitioner himself, the video of 1 minute 30 seconds was

played at the time of the seizure wherein the name of Sarhan's

T-shirt was taken and assailants were exchanging the words

between them and another person implicated the injury with the

stick when the injured was screaming, other persons who were

there at the spot also noticed and when the accused-Ajmal

Pasha was enquired and he replied that he himself, his father-

Almas Pasha, his brother-Kadeer Pasha and Abdul Majeed that is

this petitioner and others questioned the victim that how many

girls life was spoiled by him and why he had done the same to

their girl and he identified his voice. Hence, the seizure mahazar

of mobile is very clear that this petitioner was present along with

the other assailants and the very contention that the mobile

video does not show his presence cannot be accepted. Apart

from that the material clearly discloses that this petitioner was

very much present at the time of committing the murder and

exchanged the words between this petitioner and other

assailants with the victim. No doubt, there is no dispute with the

principles laid down in the judgments referred supra as the Court

can consider the subsequent bail application when more details

are given and also the Court has to presume that in a criminal

jurisprudence that he is an innocent and at the same time, the

Court has to keep in mind whether there is a prima facie case

against the petitioner. This Court while considering the petition

on merits taken note of the very presence of the petitioner as

well as the eye-witness CW19 and CW19 statement was

recorded on the very next date of the incident and merely not

mentioning the statement of PW19 in the remand application

cannot be a ground and each and everything of statement of

CW19 cannot be extracted in a remand application. The main

contention that there is no any overt act and also he was not

present in terms of the seizure mahazar of mobile but this Court

already found that this petitioner was very much present at the

time of committing the offence and scolded the victim.

8. The Apex Court in the case of KUMER SINGH VS

STATE OF RAJASTHAN AND ANOTHER reported in 2021

CRL.L.J. 4244 held that the individual role of the accused is not

required to be considered when they are alleged to have been

part of sharing of common intention. It is also further observed

that there were 26 injuries found on the dead body of the

deceased and 11 injuries on the injured Vikram Singh by blunt

and sharp weapons. In the case on hand, it has to be noted that

CW19 eye-witness when he tried to prevent assaulting the

victim, he was also taken in the car and in his presence only

inflicted the injuries and committed the murder, under such

circumstances, individual role of each of the accused cannot be

considered at the time of considering the bail petition in an

offence punishable under Section 302 of IPC and more

particularly, when they are party for the offence with Section

149 of IPC.

9. With regard to the parity is concerned, the counsel

for the petitioner would vehemently contend that accused Nos.7,

8 and 4 have been enlarged on bail and hence, this petitioner is

also entitled for bail on the ground of parity. The Apex Court in

the judgment of RAMESH BHAVAN RATHOD vs VISHANBHAI

HIRABHAI MAKWANA (KOLI) AND ANOTHER reported in

(2021) 6 SCC 230 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, parity while granting bail 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 is not sufficient to determine whether bail

can be granted on the 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 and also held that whether

order granting bail can be relied on as a precedent in a matter

for future adjudication if and when application for bail is moved

on the ground 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 the grounds of parity is made out. In the

case on hand, it is very specific that this petitioner is the relative

of accused Nos.1 to 3 and while committing the murder, all of

them joined together and went in a vehicle and when CW19 tried

to prevent the act of the accused persons, he was also taken in

the said vehicle and CW19 narrated how the incident was taken

place. I have already pointed out that even the pen drive

regarding seizure of mobile of one accused also discloses that

this petitioner was very much present at the time of committing

the murder and also scolded the victim asking that how many

girls he had spoiled and why he had done the same to their girl

and the same is evidenced in the document produced by the

petitioner itself regarding seizure of mobile and when the pen

drive was also discloses that he was very much present along

with other accused persons at the time of committing murder,

the very contention of the counsel for the petitioner that no

overt act and CC TV discloses only his presence and same is only

for 1 minute 30 seconds and the eye-witness stated the same

cannot be accepted and the counsel further contended that

subsequently, improvement was made in the statement of CW19

while filing the charge-sheet and the said fact is a matter of trial

and prima facie material discloses against this petitioner. Hence,

I do not find any merit in the contention of the learned counsel

for the petitioner to exercise the discretion in favour of this

petitioner in a successive bail petition when there is no changed

circumstances.

10. In view of the discussion made above, I pass the

following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

SN