Karnataka High Court
Sri. Hariprasad @ Avinash vs State By on 18 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:2476
CRL.P No. 11515 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL PETITION NO. 11515 OF 2023
BETWEEN:
1. SRI. HARIPRASAD @ AVINASH
S/O. MUGGANNA GOWDA,
AGED ABOUT 32 YEARS,
R/O. G. MALLENAHALLI VILLAGE,
TIPTUR TALUK,
TUMKUR DISTRICT-572 140.
...PETITIONER
(BY SRI. SIDDANOORU VISHWANATHA, ADVOCATE)
AND:
1. STATE BY
SHIVAMOGGA RURAL POLICE STATION,
SHIVAMOGGA DISTRICT,
Digitally signed
by SHARANYA T REPRESENTED BY SPP,
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF BENGALURU-560 001.
KARNATAKA
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.PC
PRAYING TO ENLARGE THE PETITIONER ON BAIL BY IMPOSING
ANY CONDITIONS IN S.C.NO.26/2022 REGISTERED FOR THE
OFFENCES P/U/S.114, 120B, 448, 397, 395 AND 201 OF IPC,
IN III ADDL. DISTRICT AND SESSION JUDGE AT SHIVAMOGGA,
REGISTERED BY THE SHIVAMOGGA RURAL POLICE STATION,
SHIVAMOGGA DISTRICT.
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CRL.P No. 11515 of 2023
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and learned
HCGP for the respondent-State.
2. This is a successive bail petition filed by petitioner-
accused No.1. This petitioner earlier approached this Court in
Crl.P.No.7876/2023 and the same was rejected vide order
dated 20.09.2023. This Court, while rejecting the bail petition,
in Para No.6 of the order taken note of the judgment of the
Apex Court in RAMESH BHAVAN RAHOD VS. VISHANBHAI
HIRABHAI MAKWANA (KOLI) AND ANOTHER reported in
(2021) 6 SCC 230 with regard to the parity is concerned,
wherein the Apex Court has observed that 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 as to how parity has to
be considered and also held that granting of bail is not a
precedent to claim in any other case. This Court also taken
note of the material available on record in Para No.8 of the
order and made an observation that custody from the last two
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years, thirty days is not a ground to enlarge the petitioner on
bail and the trial is yet to commence and while rejecting the
bail, this Court also given liberty to the petitioner to approach
this Court after examination of the victims.
3. Learned counsel for the petitioner would contend
that now the witnesses P.Ws.1 to 3 have been examined before
the Trial Court and their evidence is very clear that they were
having prior enmity against this petitioner which is elicited from
the mouth of the witnesses P.Ws.1 to 3. The counsel also
brought to notice of this Court certain admissions given by the
witnesses and though P.Ws.1 to 3 have supported the case of
the prosecution, the Court has to look into the admission given
in the cross-examination, particularly with regard to prior
enmity is concerned and the witnesses also admitted that when
they came to the house, all of them had covered their face with
monkey cap. The counsel would further submit that, prior to
Test Identification Parade, they were taken to the house of the
charge-sheet witnesses and they have identified the petitioner,
since they have seen this petitioner in their house. The counsel
would vehemently contend that the evidence of these witnesses
is not credible and this petitioner cannot be continued in
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custody and the counsel also would submit that accused Nos.2
to 5 have already been enlarged on bail and this petitioner is in
judicial custody. Hence, discretion has to be exercised in
favour of the petitioner.
4. Per contra, learned HCGP for the respondent-State
would submit that the car in which they came belongs to the
friend of accused No.1 and there is a recovery at the instance
of this petitioner to the tune of Rs.1,88,000/- and also gold
ornaments weighing 79 grams belonging to the family of the
victims. This Court, while rejecting the earlier bail petition,
taken note of the same. He would also submit that the
witnesses P.Ws.1 to 3 have supported the case of the
prosecution and they have not turned hostile and this cannot
reserve the jurisdiction of the Trial Court for appreciation of the
evidence and the same cannot be appreciated by this Court in a
petition filed under Section 439 of Cr.P.C.
5. Having heard the learned counsel for the petitioner
and learned HCGP for the respondent-State, no dispute with
regard to the fact that this Court has given liberty to the
petitioner to approach this Court after examination of the
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victims. The learned HCGP for the respondent-State also
brought to notice of this Court the evidence of P.Ws.1 to 3 and
having perused the same, it is seen that they have supported
the case of the prosecution and counsel for the petitioner tried
to convince this Court with regard to the admission given by
the witnesses P.Ws.1 to 3 with regard to the prior enmity, since
there was a dispute in connection with one Chaitra, who is
sister-in-law. The counsel also brought to notice of this Court
that this petitioner is the brother of said Chaitra. No doubt,
answers are elicited from P.Ws.1 to 3 with regard to the prior
enmity, it is the case of the prosecution that due to the said
incident, the offence of dacoity has occurred at the instance of
this petitioner and he secured the accused Nos.2 to 5, in order
to commit the said offence.
6. No doubt, bail has been granted to accused Nos.2
to 5, the allegation against this petitioner is that he is the
architect of the crime. The material also discloses that offences
under Sections 395 and 397 of IPC are invoked and the victims
have suffered injuries and recovery is also made at the instance
of this petitioner i.e., gold ornaments and also cash of
Rs.1,88,000/- and those witnesses have not been examined,
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except the victim witnesses, who have been examined as
P.Ws.1 to 3, who have not turned hostile to the case of the
prosecution. It is rightly pointed out by the learned HCGP for
the respondent-State that this Court cannot reserve the
jurisdiction of the Trial Court for appreciation of the evidence
and the same has to be done after completion of recording of
evidence by the Trial Court and this Court can only consider the
grounds urged for granting bail invoking Section 439 of Cr.P.C.
and not the evidence on record.
7. Having considered the material on record and also
the admissions which have been relied upon by the petitioner,
the same has to be considered during the course of trial while
considering the matter on merits. Hence, I do not find any
ground to enlarge the petitioner on bail by exercising the
discretionary power and the power of appreciating the evidence
and material available on record vests with the jurisdictional
Trial Court and when the witnesses P.Ws.1 to 3 have not turned
hostile to the case of the prosecution, it is not a fit case to
exercise the discretion in favour of the petitioner.
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8. In view of the discussion made above, I pass the
following:
ORDER
The bail petition is rejected.
Sd/-
JUDGE
ST
