Sanju Kumar S/O Tippanna ... vs The State Through University Ps
2023 Latest Caselaw 983 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF JANUARY, 2023

                        BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL PETITION No.201421/2022
BETWEEN:

SANJU KUMAR
S/O TIPPANNA DODDAMANI
AGE: 28 YEARS, OCC: PAINTING WORK,
R/O INDIRA NAGAR, KALABURAGI-585102
                                            ... PETITIONER
(BY SRI NANDKISHORE BOOB, ADVOCATE)

AND:

THE STATE THROUGH UNIVERSITY PS.,
KALABURAGI, NOW REPRESENTING
BY ADDL. SPP, HCKB AT KALABURAGI
                                           ... RESPONDENT
(BY SMT. MAYA T.R., HCGP)

       THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C., PRAYING TO RELEASE THE PETITIONER/A.NO.3, ON
BAIL IN CRIME NO.121/2021 OF UNIVERSITY POLICE STATION
KALABURAGI WHICH IS PENDING BEFORE THE 1ST ADDL. DIST.
& SESSIONS JUDGE AT KALABURAGI, IN S.C.NO.185/2022 FOR
THE OFFENCES UNDER SECTIONS 143, 147, 148, 302, 307,
324, 504 AND 506 R/W SECTION 149 OF IPC.


       THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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                      ORDER

Heard Sri Nandkishore Boob, learned counsel for

the petitioner and Smt. Maya T.R., learned High Court

Government Pleader.

2. The present petition is filed under Section

439 of Cr.P.C., with the following prayer:

"Therefore, it is requested that the Hon'ble Court may kindly be pleased to release the Petitioner/A.No.3, on bail in Crime No.121/2021 of University PS Kalaburagi which is pending before the Hon'ble 1st Addl. Dist & Sessions Judge at Kalaburagi, in SC No.185/2022 for the offences U/s 143,147,148,302,307,324,504 and 506 R/w 149 IPC, in view of the reasons as sated above, in the interest of justice and equity."

3. Brief facts which are necessary for disposal

of the present petition are as under:

Sri Vikash Kengare S/o Raju Kengare lodged a

complaint with University Police, Kalaburagi, and the

same came to be registered in Crime No.121/2021 for

the offences punishable under Sections 143, 147, 148,

302, 207, 324, 504, 506 r/w Section 149 of IPC.

Gist of the complaint averments reveal that

there was an engagement ceremony scheduled on

07.06.2021 between the sister of the complainant and

one Pradeep S/o Lachchappa Aigole. Said Pradeep

informed the complainant that he received a call from

Uday resident of Indira Nagar, Kalaburagi, and told

Pradeep not to marry the sister of the complainant,

Priyanka, as some other person is loving her and if he

intends to marry Priyanka, he is at stake. Thereafter,

the complainant called said Uday and he told that the

matter can be sorted out if the complainant visit near

Vajapayee Badavane at Kalaburagi. Accordingly, at

about 3.00 p.m. on 05.06.2021, the complainant, his

younger brother Nikhil, his mother Kamalabai and

Hanamantha visited near the place as is intimated to

them by Uday over telephone. At about 3:00 p.m.

when they were waiting for Uday and within a while,

Uday, Vijay, Sanju, Pintya, Sachin and three others

came there. At that juncture, initially discussions took

place as to why Uday interfered with the marriage of

Priyanka with Pradeep.

But the discussions took into an ugly turn

wherein Uday and his friends started assaulting the

complainant. They also abused them in filthy language

and when brother of the complainant Nikhil tried to

intervene, all the accused persons assaulted Nikhil

with the deadly weapons like stick, iron rod etc. Nikhil

sustained bleeding injuries on the head. When the

mother of Nikhil and complainant tried to rescue, the

accused persons also assaulted the mother with stick

and rod.

Ultimately, Shakil and Hanamantha pacified the

quarrel and the injured was shifted to the Hospital

wherein Nikhil succumbed to the injuries sustained by

him.

4. Based on the said complaint, the police

registered the case as aforesaid and investigated the

matter and filed chargesheet. The present petitioner

is accused No.3 in the charge sheet.

5. The effort made by the petitioner to seek

grant of bail is turned down by the learned Sessions

Judge, Kalaburagi and thereafter, the petitioner is

before this Court.

6. Learned counsel for the petitioner

reiterating the grounds urged in the bail petition

vehemently contended that accused Nos.6 and 7 have

been granted bail by this Court and therefore, without

there being any further discussion on the merits of the

matter, the present accused is entitled for grant of

bail on the ground of parity.

7. He also pointed out that there is a counter

case filed by the accused party against the

complainant and others and they are also facing

criminal trial. Therefore, it is just and necessary that

petitioner be granted bail.

8. He also urged that in view of case and

counter case, there is no premeditation on the part of

the accused persons and therefore, per se offence

under Section 302 of IPC does not get attracted and

sought for grant of bail.

9. Per contra, learned High Court Government

Pleader vehemently contended that the ground of

parity is not available to the present petitioner,

inasmuch as, overt-acts alleged against accused Nos.6

and 7 are different than the overt-act alleged against

the present petitioner.

10. She also contended that the material

available on record would indicate that the present

petitioner has assaulted the deceased with iron rod

resulting in heavy bleeding injury on the head.

11. Therefore, per se the petitioner is liable for

the offence punishable under Section 302 of IPC and

thus, sought for rejection of the bail petition.

12. This Court perused the material on record

meticulously in view of the rival contentions of the

parties.

13. Firstly, mere filing of the counter case by

the accused party would not make ground ipso facto

to seek grant of bail.

14. Whether the alleged assault made by the

present petitioner on the head of the deceased with

iron rod or not, is a matter that would be adjudicated

during the trial. The statement of the eyewitnesses

including the complainant would clearly indicate that

the present petitioner assaulted the deceased on the

head with iron rod.

15. Further, the postmortem report and other

material on record make out a case that Nikhil has

lost his life because of the injury sustained on the

head.

16. It is settled principle of law that at the

stage of deciding the bail petition, this Court cannot

hold a mini trial to find out merits or demerits of the

case, as the same may prejudice the case of the

parties.

17. Suffice to say that the material available on

record at this stage would not make out a case for

grant of bail to the present petitioner in view of the

specific overt-act being alleged against the petitioner.

18. Likewise, ground of parity is not available

to the present petitioner in view of the fact that the

overt-act alleged against the petitioner is assaulting

the deceased with iron rod on the head, whereas

accused Nos.6 and 7 have assaulted the deceased

with a stick resulting in simple injuries.

19. Further, mere filing of another case by the

accused party and some of the accused persons

sustaining injuries in the very same incident, ipso

facto, does not make out who is a aggressive party at

least, at this stage. It is for the Trial Court to decide

the same in view of the judgment of the Full Bench of

this Court in the case of State of Karnataka, by

Circle Inspector of Police vs. Hosakeri Ningappa

and another reported in ILR 2012 KAR 509.

20. Therefore, viewed from any angle, at this

stage, material available on record would disentitle

the petitioner to obtain an order of grant of bail by

resorting to the special power vested in this Court

under Section 439 of Cr.P.C.

21. Further, it is always open for the petitioner

to approach the Court for grant of bail, if there is a

positive changed circumstance.

22. With these observations, the following

order is passed:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

NB*