Karnataka High Court
Kalander Shafi vs The State Of Karnataka on 23 January, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:3020
CRL.P No. 13068 of 2024
C/W CRL.P No. 12766 of 2024
CRL.P No. 12841 of 2024
AND 2 OTHERS
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 13068 OF 2024 (439(Cr.PC) /
483(BNSS))
C/W
CRIMINAL PETITION NO. 12766 OF 2024
CRIMINAL PETITION NO. 12841 OF 2024
CRIMINAL PETITION NO. 12877 OF 2024
CRIMINAL PETITION NO. 13028 OF 2024
IN CRL.P No. 13068/2024
BETWEEN:
SHOAIB
S/O LATE UMMAR HUSSAIN,
AGED ABOUT 45 YEARS,
R/AT. NO 7-216, SITE NO 298,
Digitally signed AYISHA AIMAN, 7TH BLOCK,
by SHILPA R KATIPALLA KRISHNAPURA MANGALURU,
TENIHALLI PRESENTLY R/AT. PLOT NO 1003,
Location: HIGH VISHWAS HERITAGE,
COURT OF
KARNATAKA KULSHEKARA MANGALURU CITY,
D K DISTRICT 575001
...PETITIONER
(BY SRI SYED AKBAR PASHA., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY KAVOOR POLICE STATION,
MYSURU DISTRICT,
REP BY SPP HIGH COURT BUILDING,
BANGALORE 560001
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NC: 2025:KHC:3020
CRL.P No. 13068 of 2024
C/W CRL.P No. 12766 of 2024
CRL.P No. 12841 of 2024
AND 2 OTHERS
2. HYDER ALI
S/O B.M. AHAMAD BAVA,
AGED ABOUT 52 YEARS,
R/O. FLAT NO. 1904, ABHIMAN HILLS,
LIGHT HOUSE, HILL ROAD,
MANGALURU,
D.K DIST.-575003
AMENDED CAUSE TITLE AS PER ORDER
DATED 16.12.2024
...RESPONDENTS
(BY SRI THEJESH P. HCGP FOR R1;
SRI P.P. HEGDE, SENIOR COUNSEL FOR
SRI VENKATESH SOMAREDDI, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483
BNSS) PRAYING TO RELEASE HIM ON BAIL IN CR.NO.150/2024
OF KAVOOR P.S. MANGALURU CITY FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 308(2),308(5),352,351,108
R/W 190 OF BNS PENDING ON THE FILE OF J.M.F.C III COURT
MANGALURU D.K. IN THE INTEREST OF JUSTICE.
IN CRL.P NO. 12766/2024
BETWEEN:
MR. MOHAMMED MUSTAFA
S/O B. H. IDDINABBA,
AGED ABOUT 50 YEARS,
R/AT D NO 7-44B,
7TH BLOCK, KRISHNAPURA,
MANGALORE TALUK,
DAKSHINA KANNDA DISTRICT 575001
...PETITIONER
(BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
SRI MOHAMMED MUBARAK., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY KAVOOR POLICE STATION,
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NC: 2025:KHC:3020
CRL.P No. 13068 of 2024
C/W CRL.P No. 12766 of 2024
CRL.P No. 12841 of 2024
AND 2 OTHERS
MANGALORE DISTRICT 575015
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
BANGALORE 560001
2. HYDER ALI
AGED ABOUT 52 YEARS,
S/O B.M. AHAMMED BAVA,
R/O. FLAT NO. 1904, ABHIMAN HILLS,
LIGHT HOUSE, HILL ROAD,
MANGALURU,
D.K DIST.-575003
AMENDED CAUSE TITLE AS PER ORDER
DATED 16.12.2024
...RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R1;
SRI P.P. HEGDE, SENIOR COUNSEL FOR
SRI VENKATESH SOMAREDDI, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483
BNSS) PRAYING TO ENLARGE HIM ON BAIL IN
CR.NO.150/2024 OF KAVOOR P.S. MANGALORE CITY
WHICH IS PENDING ON THE FILE OF HONBLE III J.M.F.C
COURT MANGALURU FOR THE OFFENCE PUNISHABLE
UNDER SECIONS 108, 308(2), 308(5), 352, 351(2), 190 OF
BHARATIYA NYAYA SANHITA ON SUCH TERMS AND
CONDITIONS, IN THE ENDS OF JUSTICE.
IN CRL.P NO. 12841/2024
BETWEEN:
ABDUL SATHAR
S/O BAVA BEARY
AGED ABOUT 48 YEARS
R/T. NO 4-132/1, 4TH BLOCK BOLLAJE
KATIPALLA, MANGALORE TALUK
D. K DISTRICT-575030.
...PETITIONER
(BY SRI LETHIF B., ADVOCATE)
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NC: 2025:KHC:3020
CRL.P No. 13068 of 2024
C/W CRL.P No. 12766 of 2024
CRL.P No. 12841 of 2024
AND 2 OTHERS
AND:
1. THE STATE OF KARNATAKA
BY KAVOOR POLICE STATION
D. K. DISTRICT
REP. BY SPP,
HIGH COURT BUILDING,
BANGALORE 560001.
2. HYDER ALI
S/O B.M. AHAMAD BAVA,
AGED ABOUT 52 YEARS,
R/O. FLAT NO. 1904, ABHIMAN HILLS,
LIGHT HOUSE, HILL ROAD,
MANGALURU,
D.K DIST.-575003
AMENDED CAUSE TITLE AS PER ORDER
DATED 16.12.2024
...RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R1;
SRI P.P. HEGDE, SENIOR COUNSEL FOR
SRI VENKATESH SOMAREDDI, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.439 (FILED U/S.483 BNSS)
CR.P.C PRAYING TO RELEASE HIM ON BAIL IN CRIME
NO.150/2024 OF KAVOOR POLICE STATION, MANGALURU
CITY FOR THE OFFENCE UNDER SECTION
308(2),308(5),352,351(2),108 R/W SEC.190 OF BNS,
PENDING ON THE FILE OF THE JMFC III COURT,
MANGALURU D.K. DISTRICT IN THE INTEREST OF JUSTICE.
IN CRL.P NO. 12877/2024
BETWEEN:
KALANDER SHAFI
S/O LATE ISMAIL
AGED ABOUT 39 YEARS,
R/AT NO.1-140/12
KURUBARA KERI, NEAR SALAFI MASJID
BADRIYA MANZILA
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CRL.P No. 13068 of 2024
C/W CRL.P No. 12766 of 2024
CRL.P No. 12841 of 2024
AND 2 OTHERS
MANGALORE TALUK
D K DISTRICT-575030
...PETITIONER
(BY SRI. PRATHEEP K. C., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY KAVOOR POLICE STATION
D K DISTRICT
REP BY SPP, HIGH COURT BUILDING
BANGALORE-560001
2. HYDER ALI
S/O B.M. AHAMAD BAVA,
AGED ABOUT 52 YEARS,
R/O. FLAT NO. 1904, ABHIMAN HILLS,
LIGHT HOUSE, HILL ROAD,
MANGALURU, D.K DIST.-575003
AMENDED CAUSE TITLE AS PER ORDER
DATED 16.12.2024
...RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R1
SRI P.P. HEGDE, SENIOR COUNSEL FOR
SRI VENKATESH SOMAREDDI, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483
BNSS) PRAYING TO RELEASE HIM ON BAIL IN
CR.NO.150/2024 OF KAVOOR POLICE STATION
MANGALURU CITY FOR THE OFFENCE UNDER SECTION
308(2),308(5),352,351(2),108 R/W 190 OF BNS PENDING
ON THE FILE OF J.M.F.C III COURT MANGALURU D.K
DISTRICT IN THE INTEREST OF JUSTICE.
IN CRL.P NO. 13028/2024
BETWEEN:
MR MOHAMMED SIRAJ SALAM
AGED ABOUT 46 YEARS
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CRL.P No. 13068 of 2024
C/W CRL.P No. 12766 of 2024
CRL.P No. 12841 of 2024
AND 2 OTHERS
S/O B. K. IJJABBA,
R/AT. D.NO. 7-37A/3,
BADRIYA JUMMA MASJID ROAD,
7TH BLOCK, KRISHNAPURA,
SURATHKAL, MANGALURU
D.K. DISTRICT -575015.
...PETITIONER
(BY SRI. NISHIT KUMAR SHETTY.,ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
SHO, KAVOOR POLICE STATION,
MANGALORE, D.K DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001
2. HYDER ALI
AGED ABOUT 52 YEARS,
S/O B.M. AHAMAD BAVA,
R/O. FLAT NO. 1904, ABHIMAN HILLS,
LIGHT HOUSE, HILL ROAD,
MANGALURU,
D.K DIST.-575003
AMENDED CAUSE TITLE AS PER ORDER
DATED 16.12.2024
...RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R1
SRI P.P. HEGDE, SENIOR COUNSEL FOR
SRI VENKATESH SOMAREDDI, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 439 CR.P.C (U/S 483 BNSS)
PRAYING TO ENLARGE THE PETITIONER ON REGULAR BAIL
IN CR.NO.150/2024 OF KAVOOR POLICE STATION,
REGISTERED AGAINST HIM FOR THE OFFENCE UNDER
SECTION 308(2),308(5),352,351(2),190,108 OF BNS,
2023, PENDING ON THE FILE OF 3RD JMFC COURT,
MANGALORE IN THE INTEREST OF JUSTICE.
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CRL.P No. 13068 of 2024
C/W CRL.P No. 12766 of 2024
CRL.P No. 12841 of 2024
AND 2 OTHERS
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Accused Nos.2 to 6 in Crime No.150/2024 registered by
Kavoor Police Station, Dakshina Kannada District, for the
offences punishable under Sections 308(2), 308(5), 352,
351(2), 50, 54, 61(2), 140(2), 108 read with Section 190 of
BNS, 2023, are before this Court in the above captioned
petitions filed under Section 483 of BNSS, 2023, seeking
regular bail.
2. Heard the learned counsel for the parties.
3. FIR in Crime No.150/2024 was registered by Kavoor
Police Station, Dakshina Kannada District, against
Smt. Rehamath and the petitioners herein initially for the
offences punishable under Sections 308(2), 308(5), 352,
351(2) and 190 of BNS, 2023, on the basis of the first
information dated 06.10.2024 received from Hydar Ali - brother
of deceased B.M.Mumtaz Ali. During the course of investigation,
accused No.2 was arrested on 08.10.2024 and accused Nos.3
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AND 2 OTHERS
to 5 were arrested on 10.10.2024 and accused No.6 was
arrested on 11.10.2024 and subsequently, remanded to judicial
custody. Bail application filed by the aforesaid accused persons
before the jurisdictional Sessions Court in
Crl.Misc.Nos.934/2024, 917/2024, 920/2024 & 960/2024, were
rejected. Therefore, they are before this Court.
4. Learned counsels for the petitioners submit that deceased
had illicit relationship with accused no.1. After his family
members came to know about the same, he has committed
suicide. False allegations have been made against the
petitioners for extraneous reasons. There was no allegation in
the first information about demand of ransom or kidnap of the
deceased by the accused. Even in the remand applications,
there is no mention about demand of ransom or kidnap of
deceased by the accused. As against accused Nos.3 to 6 are
concerned, charge sheet has been filed only for offences
punishable under Sections 50, 61(2), 108 read with Section
190 of BNS, 2023 and the maximum punishment for the said
offences is imprisonment for a period of ten years. Petitioners
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AND 2 OTHERS
do not have any serious criminal antecedents. Accordingly, they
pray to allow the petitions.
5. Per contra, learned High Court Government Pleader for
respondent No.1 and learned Senior counsel for respondent
No.2/defacto complainant, who has filed statement of
objections have opposed the prayer made in the petitions.
6. Learned Senior counsel for respondent No.2 submits that
accused No.2, who is the husband of accused No.1, with whom
deceased had illicit relationship, was aware of the said
relationship and he along with other accused persons has
conspired to commit the alleged offences. He submits that
accused persons are persons with criminal antecedents and
accordingly, prays to dismiss the petitions.
7. In the typed first information dated 06.10.2024 submitted
by the brother of deceased B.M.Mumtaz Ali, it is averred that
the first informant had a suspicion that his brother B.M.Mumtaz
Ali had parked his car near Kuloor bridge at about 4.00 a.m. on
06.10.2024 and committed suicide by jumping into the river
and his dead body is not yet traced. It is further alleged in the
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AND 2 OTHERS
first information that B.M.Mumtaz Ali was being blackmailed
from the month of July 2024 onwards by the accused persons
and lakhs of rupees were swindled by threatening him. The
accused persons had conspired to finish B.M.Mumtaz Ali who
was a respected man and an active politician. The accused
persons were allegedly making a false propaganda that Mumtaz
Ali was having illicit relationship with accused no.1 and by
threatening, they had received more than a sum of Rs.50 lakhs
from Mumtaz Ali and a cheque for a sum of Rs.25 lakhs was
received from him which was encashed. It is further averred
that accused persons were demanding for a further sum of
Rs.50 lakhs from Mumtaz Ali and Mumtaz Ali had sent a
whatsapp message from his mobile phone to the mobile phone
of the first informant stating that accused are the cause for his
death. It is in this background, first informant had submitted a
typed first information on 06.10.2024, based on which, FIR in
Crime No.150/2024 was registered against Smt. Rehamath and
the petitioners herein.
8. During the course of investigation, accused No.2 was
arrested on 08.10.2024 and accused Nos.3 to 5 were arrested
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AND 2 OTHERS
on 10.10.2024 and accused No.6 was arrested on 11.10.2024
and subsequently, remanded to judicial custody. Investigation
in the case is completed and charge sheet has been filed.
Insofar as accused Nos.3 to 6 are concerned, charge sheet has
been filed against them only for offences punishable under
Sections 50, 61(2), 108 read with Section 190 of BNS, 2023
and as against accused No.2, charge sheet has been filed for
the offences punishable under Sections 308(2), 308(5), 54,
61(2), 140(2), 108 read with Section 190 of BNS, 2023. Insofar
as offences for which charge sheet has been filed against
accused Nos.3 to 6 are concerned, the maximum punishment
for the said offences is imprisonment for a period of ten years.
As against accused No.2, charge sheet has been filed invoking
the offence punishable under Section 140(2) of BNS, 2023 and
the said offence is punishable with death or life imprisonment.
It is relevant to take note of the fact that no allegation was
made in the first information as against accused about demand
of ransom or kidnap of deceased by accused. Such an
allegation is not made even in the remand applications of
accused persons. The allegation of ransom and kidnap was
made for the first time based on the statement of
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AND 2 OTHERS
CW-38/Lakshmi, which was recorded after a period of more
than 50 days from the date of registration of FIR.
9. A perusal of the charge sheet material would go to show
that deceased had illicit relationship with accused No.1 and
accused No.1 allegedly had recorded her conversation with
deceased in her mobile phone and she also had recorded
certain private videos in her mobile phone and was threatening
the deceased. The allegation against accused No.2 is that he
had conspired with accused Nos.1, 3, 4, 5 and 6 and was
threatening the deceased on the basis of the conversation and
private videos that were recorded by accused No.1 in her
mobile phone and therefore, deceased had committed suicide.
The allegation against accused Nos.3, 4, 5 and 6 is that they
had conspired with accused Nos.1 and 2 and they also were
allegedly threatening the deceased to harm his reputation by
circulating his private conversation and videos which was
recorded in the mobile phone of accused No.1. Though it is
submitted by learned counsel for respondent No.2 that the
petitioners are persons with criminal antecedents, list of any
such criminal cases in which petitioners are accused has not
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AND 2 OTHERS
been furnished either by learned High Court Government
Pleader for respondent No.1 or learned counsel for respondent
No.2.
10. It is relevant to take note of the fact that an application
was filed by prosecution to invoke Section 111 of BNS, 2023
against accused in the present case. Section 111 of BNS, 2023,
provides for punishment for Organised Crime. Though the said
application filed by prosecution before the learned Magistrate
was allowed, after investigation, charge sheet has been filed
only for the aforesaid offences and the offence punishable
under Section 111 of BNS, 2023 is dropped in the charge sheet
which would prima facie go to show that petitioners do not
have any serious criminal antecedents. Investigation in the
case is already completed and charge sheet has been filed.
Prosecution has all together cited 156 charge sheet witnesses
in the present case and therefore, chances of trial being
completed and the case being disposed of on merits in the near
future is very remote.
11. In the case of SATENDAR KUMAR ANTIL VS CENTRAL
BUREAU OF INVESTIGATION & ANOTHER - (2022) 10
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AND 2 OTHERS
SCC 51, the Hon'ble Supreme Court in paragraph Nos.93 & 94,
has observed as under:
"93. The rate of conviction in criminal cases in
India is abysmally low. It appears to us that this
factor weighs on the mind of the Court while
deciding the bail applications in a negative sense.
Courts tend to think that the possibility of a
conviction being nearer to rarity, bail applications
will have to be decided strictly, contrary to legal
principles. We cannot mix up consideration of a bail
application, which is not punitive in nature with that
of a possible adjudication by way of trial. On the
contrary, an ultimate acquittal with continued
custody would be a case of grave injustice.
94. Criminal courts in general with the trial
court in particular are the guardian angels of
liberty. Liberty, as embedded in the Code, has to be
preserved, protected, and enforced by the criminal
courts. Any conscious failure by the criminal courts
would constitute an affront to liberty. It is the pious
duty of the criminal court to zealously guard and
keep a consistent vision in safeguarding the
constitutional values and ethos. A criminal court
must uphold the constitutional thrust with
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AND 2 OTHERS
responsibility mandated on them by acting akin to a
high priest."
12. In the case of MANISH SISODIA VS DIRECTORATE OF
ENFORCEMENT - 2022 SCC OnLine SC 1920, at paragraph
No.53, the Hon'ble Supreme Court has observed as under:
"53. The Court further observed that, over a
period of time, the trial courts and the High Courts
have forgotten a very well-settled principle of law
that bail is not to be withheld as a punishment.
From our experience, we can say that it appears
that the trial courts and the High Courts attempt to
play safe in matters of grant of bail. The principle
that bail is a rule and refusal is an exception is, at
times, followed in breach. On account of non-grant
of bail even in straight forward open and shut
cases, this Court is flooded with huge number of
bail petitions thereby adding to the huge pendency.
It is high time that the trial courts and the High
Courts should recognize the principle that "bail is
rule and jail is exception."
13. Considering the nature of allegations found as against
petitioners in the charge sheet and also having regard to the
aforesaid judgments of the Hon'ble Supreme Court, I am of the
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AND 2 OTHERS
opinion that the prayer made by petitioners for grant of regular
bail in these petitions needs to be answered affirmatively.
Accordingly, the following order:-
14. The petitions are allowed. The petitioners are directed to
be enlarged on bail in Crime No.150/2024 registered by Kavoor
Police Station, Dakshina Kannada District, for the offences
punishable under Sections 308(2), 308(5), 352, 351(2), 50, 54,
61(2), 140(2), 108 read with Section 190 of BNS, 2023,
subject to the following conditions:
a) Petitioners shall execute personal bond for
a sum of Rs.1,00,000/- each with two sureties for
the likesum, to the satisfaction of the jurisdictional
Court;
b) The petitioners shall appear regularly on all
the dates of hearing before the Trial Court unless
the Trial Court exempts their appearance for valid
reasons;
c) The petitioners shall not directly or
indirectly threaten or tamper with the prosecution
witnesses;
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AND 2 OTHERS
d) The petitioners shall not involve in similar
offences in future;
e) The petitioners shall not leave the
jurisdiction of the Trial Court without permission of
the said Court until the case registered against
them is disposed off.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
DN
CT:PK
