Karnataka High Court
Mr Shivaswamy @ Swamy vs State By on 20 September, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:34053
CRL.P No. 7340 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL PETITION NO. 7340 OF 2023
BETWEEN:
1. MR. SHIVASWAMY @ SWAMY
S/O. LAKSHMAN NAYAK
AGED ABOUT 22 YEARS
R/AT KAREHALLI HATTI
KASABA HOBLI
ARASIKERE TALUK
HASSAN DISTRICT-573 172.
...PETITIONER
(BY SRI B.M.MOHAN KUMAR, ADVOCATE)
AND:
1. STATE BY
ARASIKERE RURAL POLICE STATION
HASSAN DISTRICT
Digitally signed
by SHARANYA T REP. BY STATE PUBLIC PROSECUTOR
Location: HIGH HIGH COURT OF KARNATAKA
COURT OF BENGALURU-560 001.
KARNATAKA
...RESPONDENT
(BY SRI K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.111/2021 OF ARASIKERE RURAL POLICE STATION,
HASSAN DISTRICT, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 120B R/W. SECTION 149 OF IPC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 7340 of 2023
ORDER
This is a successive bail petition filed under Section 439
of Cr.P.C. seeking regular bail of the petitioner/accused in
Crime No.111/2021 of Arasikere Rural Police Station, Arasikere
Rural Circle, Hassan, for the offence punishable under Sections
302 and 120(B) read with Section 149 of IPC.
2. Heard the learned counsel for the petitioner and the
learned High Court Government Pleader appearing for the
respondent-State.
3. Learned counsel for the petitioner would
vehemently contend that other accused persons i.e., accused
Nos.3 to 7 have been enlarged on bail and in support of his
argument, he relied upon the order passed by this Court in
Crl.P.No.4833/2022 in respect of accused No.7,
Crl.P.No.6199/2022 in respect of accused No.6 and
Crl.P.No.2420/2023 in respect of accused No.4 and
Crl.P.No.4007/2023 in respect of accused Nos.1, 3 and 5 and
petition in respect of accused No.1 was dismissed as not
pressed and accused Nos.3 and 5 were enlarged on bail.
Hence, this Court has to grant bail to the petitioner on the
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CRL.P No. 7340 of 2023
ground of parity. The counsel also would submit that the
statement of the witnesses C.Ws.3 to 6 are not particular that
they have last seen the accused persons. Hence, the petitioner
may be enlarged on bail.
4. Learned High Court Government Pleader appearing
for the respondent-State would submit that this petitioner is
accused No.2 and main allegation is against accused Nos.1 and
2 and the bail petition in respect of accused No.1 was dismissed
as not pressed and this petitioner inflicted injury with machete
and recovery is also made at the instance of this petitioner and
this Court earlier rejected the bail petition of this petitioner and
there is no changed circumstance to enlarge the petitioner on
bail.
5. Having heard the learned counsel for the petitioner
and learned High Court Government Pleader appearing for the
respondent-State and also on perusal of the orders passed by
this Court enlarging accused Nos.3 to 7, the grounds for
enlarging all other accused persons on bail is that there is no
material against those accused persons, except the voluntary
statement of other co-accused persons. It is also apparent that
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CRL.P No. 7340 of 2023
the name of the accused No.7 was not found in the charge-
sheet and the allegation against accused No.6 is that he was
only serving liquor and there is no overt act allegation and
accused Nos.3 and 5 were also enlarged on bail since, they
have been implicated based on the voluntary statement of
other accused persons. The allegation is only against accused
Nos.2 and 3 that they have assaulted the deceased with stones
and stones were recovered at the spot and not at the instance
of accused persons.
6. Having taken note of the reasons given in the bail
petitions relied upon by the learned counsel for the petitioner
for enlarging the other accused persons, the same will not
come to the aid of this petitioner since, machete was recovered
at the instance of this petitioner and this Court has also taken
taken note of the statement of witnesses i.e., C.Ws.3 to 6 that
they have witnessed galata between the accused persons and
deceased and taking the deceased along with them. When
such being the case and there is no changed circumstance, this
Court cannot exercise the discretion in favour of the petitioner
under Section 439 of Cr.P.C. to enlarge the petitioner on bail.
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CRL.P No. 7340 of 2023
7. The Apex Court also in the judgment in RAMESH
BHAVAN RATHOD VS. VISHANBHAI HIRABHAI MAKWANA
(KOLI) AND ANOTHER reported in (2021) 6 SCC 230, held
that the order of the High Court cannot be capricious and the
Court has to take note of specific overt act allegations against
each of the accused persons and also the material collected
against each of the accused persons and parity cannot be
exercised, if no similar allegations as that of the other accused
persons are made out. Hence, the judgment of the Apex Court
is aptly applicable to the case on hand. Therefore, no grounds
are made out to enlarge the petitioner on bail.
Accordingly, the bail petition is rejected. However, liberty
is reserved to the petitioner to approach this Court, after the
examination of witnesses C.Ws.3 to 6 and recovery witnesses.
Sd/-
JUDGE
ST
