Irshad Khan vs The State Of Karnataka
2023 Latest Caselaw 6838 Kant

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                                                     NC: 2023:KHC:35277
                                                 CRL.P No. 7354 of 2023




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                        BEFORE

                          THE HON'BLE MR JUSTICE H.P.SANDESH

                           CRIMINAL PETITION NO.7354 OF 2023

                   BETWEEN:

                   IRSHAD KHAN
                   S/O LATE. ALLAH BAKASH,
                   AGED ABOUT 36 YEARS,
                   R/AT AISHA MANZIL,
                   7TH CROSS, RASHAD NAGAR,
                   ARABIC COLLEGE POST,
                   BENGALURU - 560 045.

                                                         ...PETITIONER

                   (BY SMT. SHOBHA SALAMANTAPI, ADVOCATE)
Digitally signed
by SHARANYA T      AND:
Location: HIGH
COURT OF
KARNATAKA          THE STATE OF KARNATAKA
                   BY GOVINDAPURA POLICE STATION,
                   BENGALURU.
                   REPRESENTED BY
                   STATE PUBLIC PROSECUTOR
                   HIGH COURT COMPLEX,
                   BENGALURU-560 001.

                                                        ...RESPONDENT
                   (BY SRI K. NAGESHWARAPPA, HCGP)
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                                           NC: 2023:KHC:35277
                                       CRL.P No. 7354 of 2023




     THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN S.C.NO.408/2022
(CR.NO.21/2021)    OF   RESPONDENT         -   GOVINDAPURA
POLICE FOR THE OFFENCES            P/U/S.143, 147, 148, 302,
341, 120-B R/W SEC.149 OF IPC AND SEC.3, 25 OF ARMS
ACT AND ETC.

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


                        ORDER

Heard the learned counsel appearing for the

petitioner and the learned HCGP appearing for the State.

2. This is a successive bail petition. Earlier, this

petitioner had approached this Court in Crl.P.No.653/2022

and this Court vide order dated 14.02.2022 has dismissed

the petition with liberty to approach this Court after

receipt of the FSL report. Now, the counsel for the

petitioner has filed the FSL report before the Court. The

counsel also relies upon the orders passed by the co-

ordinate bench of this Court in Crl.P.No.6851/2021 dated

07.10.2021 wherein this Court granted bail in favour of

NC: 2023:KHC:35277 CRL.P No. 7354 of 2023

accused No.8 and hence, the counsel prays this Court to

enlarge this petitioner on bail. The counsel also would

vehemently contend that the mother of the petitioner is

suffering from ill-health and the Court has to grant the bail

considering the same in a lenient way. If the petitioner is

enlarged on bail, he would take care of his mother.

3. Per contra, the learned HCGP appearing for the

State would vehemently contend that this Court already

considered the matter on merit and rejected the bail

petition and no doubt, liberty was given to the petitioner

to approach this Court after the receipt of the FSL report

but FSL report clearly discloses that the cloth of this

petitioner which was seized is stained with blood and

hence, FSL report is positive and there is no changed

circumstances. The counsel also would vehemently

contend that this petitioner is the brother of accused No.1

and accused No.1 inflicted the injury and this petitioner

along with accused No.6 held the victim and facilitated in

NC: 2023:KHC:35277 CRL.P No. 7354 of 2023

committing the murder and hence, the petitioner is not

entitled for bail.

4. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

on record and also on perusal of the order passed by the

co-ordinate Bench of this Court in Crl.P.No.6851/2021,

this Court while exercising the discretion in favour of

accused No.8 an observation is made that there is no

incriminating materials are seized from the custody of

accused No.8 and the prosecution only relied upon the

voluntary statement of accused Nos.1 to 7 and exercised

the discretion in favour of accused No.8. Hence, this Court

while exercising the discretion in favour of accused No.8

taken note of the specific allegation and role played by the

petitioner in that petition and exercised the discretion.

5. The Apex Court in the judgment reported in

(2021) 6 SCC 230 in the case of RAMESH BHAVAN

RATHOD vs VISHANBAHI HIRABHAI MAKWANA

(KOLI) AND ANOTHER laid down that while granting the

NC: 2023:KHC:35277 CRL.P No. 7354 of 2023

bail in a case of parity, the High Court cannot exercise the

powers in a capricious manner and has to consider the

totality of circumstances before granting bail and while

applying the principles of parity while granting bail must

focus upon the role of the accused. Merely observing that

another accused who was granted bail was armed with a

similar weapon is not sufficient to determine whether a

case for the grant of bail on the basis of parity has been

established. In deciding the aspect of parity, the role

attached to the accused, their position in relation to the

incident and to the victims is of utmost importance and

also laid down the law that how parity has to be

considered and also held that the granting of bail is not a

precedent to claim in any other case.

6. Having considered the principles laid down in

the judgment referred supra and also considering the

observation made by the co-ordinate Bench of this Court,

the same will not comes to the aid of the petitioner to

exercise the principles of parity. The FSL report which is

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produced along with the documents clearly discloses that

item No.11 i.e., shirt belongs to this petitioner and the

same also subjected to FSL and the shirt contains the

blood stain and FSL report goes against the petitioner

herein. Though this Court given liberty to approach this

Court after receipt of FSL report, but FSL report also will

not comes to the aid of this petitioner.

7. The other contention of the counsel for the

petitioner is that the mother of the petitioner is not

keeping good health and the presence of the petitioner is

necessary. The said contention cannot be accepted when

an heinous offence of Section 302 of IPC is invoked

against this petitioner and he is part of committing the

crime and the specific overt act allegation is alleged

against him and hence, this Court cannot exercise the

discretion in favour of this petitioner on the ground of

humanity as contended by the counsel for the petitioner.

Hence, I do not find any merit in the successive bail

petition to grant the bail in respect of this petitioner.

NC: 2023:KHC:35277 CRL.P No. 7354 of 2023

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

the following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

SN