Karnataka High Court

Mohan V vs State Of Karnataka By on 21 July, 2025

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                     CRL.P No. 3195 of 2025
                                                 C/W CRL.P No. 3210 of 2025
                                                     CRL.P No. 4969 of 2025
              HC-KAR



                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 21ST DAY OF JULY, 2025
                                         BEFORE
                     THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
                       CRIMINAL PETITION No.3195 OF 2025
                                       C/W
                 CRIMINAL PETITION Nos. 3210 OF 2025, 4969 OF 2025

              IN CRL. P. No.3195/2025:
              BETWEEN:

              MOHAN V
              AGED ABOUT 38 YEARS
              S/O VENKATESH MURTHY
              R/AT WARD NO.27, MAGADI
              ROAD, KAYARADODDI
              RAMANAGARAM TOWN
              RAMANAGARAM - 57151.
                                                               ...PETITIONER

              (BY SRI SANDESH CHOTA J, SR. COUNSEL FOR
                  SRI K. PRASANNA SHETTY, ADV.)
              AND:

              1 . STATE OF KARNATAKA BY
Digitally         PARAPPPANA AGRAHARA P.S
signed by         REPRESENTED BY STATE PUBLIC
NANDINI M S
                  PROSECUTOR, HIGH COURT OF
Location:
HIGH COURT        KARNATAKA, BANGALORE - 560 001.
OF
KARNATAKA     2 . SMT. MEGHANA EREGOWDA
                  W/O LATE MAHESH
                  AGED 27 YEARS
                  LALBAG, SIDDAPURA SLUM
                  NEAR PILEKAMMA TEMPLE
                  MAVALLI, JAYANAGAR
                  BENGALURU - 560 098.
                                                             ...RESPONDENTS

(BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP A/W SMT. WAHEEDA M.M, HCGP FOR R-1;

R-2 SERVED)

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THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNSS) PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL.C.C.NO.226/2024 (CR.NO.345/2023) REGISTERED BY RESPONDENT POLICE, PARAPPANAAGRAHARA POLICE, PENDING ON THE FILE OF PRL. CITY CIVIL AND SESSIONS JUDGE AT BANGLAORE FOR THE ALLEGED OFFENCE P/US/ 25(1AA), 25(1B(b)) OF INDIAN ARMS ACT, SEC. 120B, 341, 427, 143, 144, 147, 148, 37, 38, 302, 307, 109, 201, 202, 204, 212 AND 149 OF IPC, SEC. 3(2)(v, 3(2)(va) OF SC / ST (POA) ACT, 1989 AND EC. 3(1)(i), 3(2), 3(3), 3(4) AND 4 OF THE KARNAAKA CONTROL OF ORGANIZED CRIME ACT, 2000 (KCOCA).

IN CRL.P NO.3210/2025:

BETWEEN:

J. NAGARAJ @ WILSON GARDEN NAGA S/O JAYARAJ AGED ABOUT 35 YEARS R/AT NO.101, 1ST MAIN, 2ND CROSS, VINAYAKA NAGAR ADUGODI, BENGALURU - 560 030.

...PETITIONER (BY SRI SNADESH CHOUTA J, SR. COUNSEL FOR SRI K. PRASANNA SHETTY, ADV.)

AND:

1. STATE OF KARNATAKA BY PARAPPPANA AGRAHARA P.S REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 560 001.

2. SMT. MEGHANA EREGOWDA W/O LATE MAHESH AGED 27 YEARS LALBAG, SIDDAPURA SLUM NEAR PILEKAMMA TEMPLE MAVALLI, JAYANAGAR BENGALURU - 560 098.

...RESPONDENTS (BY SRI VIJAYA KUMAR MAJEGE, ADDL. SPP A/W SMT. WAHEEDA M.M, HCGP)

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THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNSS) PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL.C.C.NO.226/2024 (CR.NO.345/2023) REGISTERED BY RESPONDENT POLICE, PARAPPANA AGRAHARA POLICE STATION, PENDING ON THE FILE OF PRL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE FOR THE ALLEGED OFFENCE P/US/ 25(1AA), 25(1B(b)) OF INDIAN ARMS ACT, SEC. 120B, 341, 427, 143, 144, 147, 148, 37, 38, 302, 307, 109, 201, 202, 204, 212 AND 149 OF IPC, SEC. 3(2)(v, 3(2)(va) OF SC / ST (POA) ACT, 1989 AND EC. 3(1)(i), 3(2), 3(3), 3(4) AND 4 OF THE KARNAAKA CONTROL OF ORGANIZED CRIME ACT, 2000 (KCOCA).

IN CRL.P NO.4969/2025:

BETWEEN:

1. NAVEEN KUMAR A @ KALAR AGED ABOUT 26 YEARS S/O ANNAYAPPA R/AT C/O CHAYA KUMARI BEHIND SANDHYA THEATRE MADIWALA, BANGALORE - 560 068 PARMANENT ADDRESS KELAMANGALA G.B. KATTE TAMILNADU - 635 113.

2. GOKUL S/O GOPI AGED ABOUT 26 YEARS R/A NO.13/36, 3RD CROSS NEAR BADAVARA SANGHA NEAR MARY IMACULATE SCHOOL LAKKASANDRA, BANGALORE - 560 034.

3. SURESH BABU B S/O VENKATA RAMANA AGED ABOUT 29 YEARS R/A NO.11, BALAGERE VARTHUR MAIN ROAD, NEAR S J OINNACLE APARTMENTS VARTHUR, BENGALURU - 560 087.

4. DINESH ALIS DIO DINI S/O ARJUN AGED ABOUT 29 YEARS

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R/A NO.451, 8TH MAIN ROAD 5TH CROSS, VIJAYA NAGAR BANGALORE - 560 026.

...PETITIONERS (BY SRI K. PRASANNA SHETTY, ADV.)

AND:

1 . STATE OF KARNATAKA PARAPPPANA AGRAHARA P.S REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 560 001.

2 . SMT. MEGHANA EREGOWDA W/O LATE MAHESH AGED 27 YEARS LALBAG, SIDDAPURA SLUM NEAR PILERAMMA TEMPLE MAVALLI, JAYANAGAR BENGALURU - 560 098.

...RESPONDENTS

(BY SRI VIJAYA KUMAR MAJEGE, ADDL. SPP A/W SMT. WAHEEDA M.M, HCGP)

THIS CRL.P IS FILED U/S 439 CR.PC(FILED U/S 483 BNSS) PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN SPL.C.C.NO.226/2024 (CR.NO.345/2023) REGISTERED BY RESPONDENT PARAPPANA AGRAHARA POLICE PENDING ON THE FILE OF PRL.CITY CIVIL AND SESSIONS JUDGE AT BENGALURU FOR THE ALLEGED OFFEENCE P/U/S 25(1AA),25,(1B)(b) OF INDIAN ARMS ACT AND SEC.120(B), 341, 427, 143, 144, 147, 148, 37, 38, 302, 307, 109, 201, 202, 204, 212 R/W 149 OF IPC AND SEC.3(2)(v),3(2)(va) SC/ST (POA) ACT 1989 AND SEC.3(1)(i),3(2),3(3),3(4) AND 4 OF THE KARNATAKA CONTROL OF ORGANIZED CRIME ACT 2000 (KCOCA).

THESE PETITIONS, HAVING BEEN RESEREVED FOR ORDERS ON 11.07.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY

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CAV ORDER

(PER: HON'BLE MR JUSTICE S VISHWAJITH SHETTY)

1. Accused nos.1, 2, 9, 11, 14 & 16 in Spl.CC.No.226/2024

pending before the Court of Principal City Civil & Sessions

Judge and Special Judge, Bengaluru, arising out of Crime

No.345/2023 registered by Parappana Agrahara Police Station,

Bengaluru City, for the offences punishable under Sections

25(1AA), 25(1B(b)) of Indian Arms Act, 1959, Sections 120B,

341, 427, 143, 144, 147, 148, 37, 38, 302, 307, 109, 201,

202, 204, 212, 149 of IPC, Sections 3(2)(v), 3(2)(va) of

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, and Sections 3(1)(i), 3(2), 3(3), 3(4) & 4

of the Karnataka Control of Organised Crime Act, 2000 (for

short, 'KCOCA'), are before this Court in these three petitions

filed under Section 439 of Cr.PC seeking regular bail.

2. Heard the learned Counsel for the parties.

3. FIR in Crime No.345/2023 was registered by Parappana

Agrahara Police Station, Bengaluru City, initially for the

offences punishable under Sections 25(1AA), 25(1B)(B) of

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Arms Act, 1959, Sections 341, 427, 143, 147, 148, 302, 120B,

149 of IPC, against Wilson Garden Naga (accused no.1) and

others based on the first information dated 04.08.2023

received from Meghana Eregowda who is the wife of deceased

Mahesh. During the course of investigation of the case, accused

nos.1 & 2 were arrested on 18.08.2023 and accused nos.9, 11,

14 & 16 were arrested on 06.08.2023. After completing

investigation, charge sheet was filed against 27 persons and

petitioners herein are arrayed as accused nos.1, 2, 9, 11, 14 &

16 in the charge sheet. Their bail applications filed before the

Trial Court in Spl.CC.No.226/2024 were rejected, and

therefore, they are before this Court in these three petitions.

4. Learned Senior Counsel appearing on behalf of accused

nos.1 & 2 submits that accused nos.17 to 27 have been

enlarged on bail in the present case. Accused nos.3 to 16 are

the assailants and the allegation against accused nos.1 & 2 is

about conspiracy to murder deceased Mahesh. Accused nos.1 &

2 have been acquitted in all the criminal cases registered

against them except in one case which is registered against

them for the offences punishable under Sections 399, 402 of

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IPC and the provisions of the KCOCA. The prosecution has

failed to produce any material against accused nos.1 & 2 which

would prima facie make out a case for conspiracy, motive or

financing the assailants to commit the murder. The prosecution

has cited 256 charge sheet witnesses in the present case and

the case is still at the stage of hearing before charge. He has

placed reliance on the judgment of the Hon'ble Supreme Court

in the case of PRABHAKAR TEWARI VS STATE OF U.P. & ANR. -

Crl.A.No.152/2020 disposed of on 24.01.2020, and also in the

case of SADDAM HUSSAIN M.K. & ORS. VS UNION OF INDIA -

CRL.A.No.2717/2025 disposed of on 19.05.2025.

5. Learned Counsel appearing on behalf of accused nos.9,

11, 14 & 16 submits that the said accused have not been

identified by the alleged eye-witnesses to the case. Their name

is not found in the FIR. Accused nos.11 & 14 do not have any

criminal antecedents and accused nos.9 & 16 who were earlier

involved in another criminal case have been acquitted in the

said case. Except the present case, there is no other case

pending against accused nos.9, 11, 14 & 16. The provisions of

KCOCA cannot be invoked as against them. They are in custody

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for the last nearly two years and the trial in the case is yet to

commence. Accordingly, he prays to allow the petition.

6. Per contra, learned SPP has opposed the petitions. He

submits that accused nos.1 & 2 have a notorious background

and they were involved in multiple criminal cases registered for

heinous offences punishable under Sections 302, 307, 364A,

etc. Considering that these accused persons are involved in

committing organized crimes and also since the charge sheet

witnesses are threatened by them, the provisions of KCOCA has

been invoked against them in the present case. In most of the

earlier criminal cases registered against them, they have been

acquitted for the reason that charge sheet witnesses have not

supported the case of the prosecution. The prosecution during

the course of investigation has produced material which prima

facie shows that accused nos.1 & 2 were in contact with the

other accused persons and they had provided vehicles and

financial assistance to the assailants. Because of the rivalry

between two gangs, multiple murders have taken place and the

deceased is one of the victims of the rivalry between two

gangs. In the event the accused are enlarged on bail, the

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chances of they committing similar offences and also

threatening the material charge sheet witnesses cannot be

ruled out. There are eye-witnesses to the incident in question

who have spoken about the role of the assailants. The accused

persons have confessed to their crime and the confession of

the accused is admissible under Section 19 of the KCOCA. The

weapons and blood stained clothes were seized from the

assailants after their arrest and the DNA test report supports

the case of the prosecution. Merely for the reason that accused

persons are in custody for a period of nearly two years, their

bail applications cannot be entertained having regard to the

gravity of offence and also the background in which the incident

in question has taken place. Accordingly, he prays to dismiss

the petitions.

7. FIR in the present case was registered against accused

nos.1, 2 and others. After completing investigation, charge

sheet has been filed against 27 persons. The allegation as

against accused nos.1 & 2 is about conspiring with the other

accused persons to commit the murder of deceased Mahesh

who was earlier a member of the gang of accused nos.1 & 2.

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According to the prosecution, Mahesh had joined hands with

Linga with whom accused nos.1 & 2 had a rivalry. Linga was

murdered on 08.12.2020, and in the said case, accused nos.1 &

2 were arrayed as accused. It appears that subsequently

Madan who was the accomplice of accused nos.1 & 2 was

murdered and in the said case Mahesh who was arrayed as

accused was arrested, and therefore, accused nos.1 & 2 had

conspired to commit the murder of Mahesh and in furtherance

of such conspiracy, on 04.08.2023 accused nos.3 to 16 who

came in two Innova Cars bearing registration Nos.KA-05-AB-

2224 and KA-51-AB-3852, intercepted the car bearing

registration No.KA-05-MM-9263 in which deceased Mahesh was

travelling with CW-60 & CW-67 after being released from jail,

and assaulted him with deadly weapons and committed his

murder. The allegation against accused nos.17 to 27 is that

they conspired with the other accused persons and were

informing the other accused persons about the whereabouts of

Mahesh. It is under these circumstances, accused nos.17 to 27

have been enlarged on bail in the present case.

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8. So far as accused nos.1 & 2 are concerned, a case of

strong motive has been made out by the prosecution.

According to the prosecution, since Mahesh was involved in the

murder of Madan who was the accomplice of accused nos.1 &

2, they had decided to eliminate him, and accordingly had

conspired with the other accused persons. The prosecution has

collected material to show that accused no.1 had provided

vehicles to the assailants for the purpose of committing the

crime and thereafter to escape from the spot of crime. Accused

no.1 was involved in totally 22 criminal cases and during the

last 10 years prior to the alleged date of incident, he was

involved in 13 criminal cases. Accused no.2 was involved in 5

criminal cases prior to the registration of the present case

against him.

9. Learned Counsel for the petitioners/accused nos.1 & 2

has submitted that in all the earlier criminal cases registered

against accused nos.1 & 2, they have been now acquitted and

only one criminal case registered against them for the offences

punishable under Sections 399 & 402 IPC and under the

provisions of the KCOCA is pending as against them.

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10. The material on record would go to show that accused

nos.1 & 2 were involved in multiple criminal cases registered

for the offences punishable under Sections 302, 307 IPC, etc.,

and even the provisions of KCOCA has been invoked against

them on multiple occasions. In the earlier criminal cases

registered against them, they were enlarged on bail.

11. Section 22 of KCOCA provides for modified application of

certain provisions of the Code, which reads as under:

"22. Modified application of certain provisions of the Code. - (1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and "Cognizable case" as defined in that clause shall be constructed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in sub-section (2), -

(a) The references to "fifteen days" and "Sixty days"

wherever they occur, shall be constructed as references to "Thirty days" and "ninety days" respectively; (b) After the proviso, the following proviso shall be inserted namely:- "Provided further that if it is not possible to

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complete the investigation within the said period of ninety days, the Special Court shall extend the said period up to one hundred and eighty days on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days."

(3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.

(4) Notwithstanding anything contained in the code no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on own bond, unless-

(a) The Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) Where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act or under any other Act on the date of the offence in question.

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(6) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.

(7) The police officer seeking the custody of any person for pre-indictment or pretrial interrogation from the judicial custody shall file a written statement explaining the reason for seeking such custody and also for the delay if any, seeking the police custody."

12. Under Section 22(4) of KCOCA, unless the Court is

satisfied that there are reasonable grounds for believing that

accused is not guilty of such offence and that he is not likely to

commit any offence while on bail, the accused cannot be

released on bail. Considering the fact that accused nos.1 & 2

are persons with criminal antecedents, merely for the reason

that they have been acquitted in the earlier criminal cases

registered against them, it is difficult to record a finding at this

stage that they are not likely to commit any offence while on

bail. In fact, as on the date of the alleged offence, accused

nos.1 & 2 were on bail in Crime No.58/2017 registered by

Yelahanka Police Station, Bengaluru City, for the offences

punishable under Sections 399, 402 IPC, Sections 27 & 30 of

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Arms Act and Section 3 of KCOCA, and the said case is

undisputedly pending as on this date. In the said case, they

were on bail as on the date of the alleged incident.

13. Section 22(5) of KCOCA provides a further limitation in

addition to the limitation provided under Section 22(4) of

KCOCA. Section 22(5) of KCOCA states that accused shall not

be granted bail if it is noticed by the court that he was on bail

in an offence under KCOCA or under any other Act on the date

of the offence in question. A similar provision under the

Maharashtra Control of Organized Crime Act, 1999, was

considered by the Hon'ble Supreme Court in the case of STATE

OF MAHARASHTRA VS BHARAT SHANTI LAL SHAH & OTHERS -

(2018)13 SCC 5, and in paragraphs 62 & 64 of the said

judgment, it is observed as under:

"62. Having recorded our finding in the aforesaid manner, we now proceed to decide the issue as to whether a person accused of an offence under MCOCA should be denied bail if on the date of the offence he is on bail for an offence under MCOCA or any other Act. Section 21(5) of MCOCA reads as under:

"21. (5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is

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noticed by the court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question."

64. We consider that a person who is on bail after being arrested for violation of law unconnected with MCOCA, should not be denied his right to seek bail if he is arrested under MCOCA, for it cannot be said that he is a habitual offender. The provision of denying his right to seek bail, if he was arrested earlier and was on bail for commission of an offence under any other Act, suffers from the vice of unreasonable classification by placing in the same class, offences which may have nothing in common with those under MCOCA, for the purpose of denying consideration of bail. The aforesaid expression and restriction on the right of seeking bail is not even in consonance with the object sought to be achieved by the Act and, therefore, on the face of the provisions this is an excessive restriction."

14. From a reading of the aforesaid observations in Bharat

Shanti Lal Shah's case supra, it is very clear that restriction

under Section 22(5) of KCOCA cannot be made applicable

against a person who is on bail in a criminal case registered

against him not connected with KCOCA. But such a restriction

would apply to a person who was on bail in a case earlier

registered against him under the provisions of KCOCA as on the

date of registration of the present case.

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15. It is specifically contended by the learned SPP that in the

event accused nos.1 & 2 are enlarged on bail, they may tamper

with the prosecution witnesses. The said apprehension also

cannot be ruled out considering the notorious background of

accused nos.1 & 2 and also the fact that in majority of criminal

cases registered against them, the witnesses have not

supported the case of the prosecution.

16. In Prabhakar Tewari's case supra, the Hon'ble Supreme

Court has observed that merely for the reason that there are

other criminal cases pending against an accused, the same

cannot be a ground to deny him bail. The said principle has

been followed by this Court in the case of JAGAN @

JAGANNATH VS THE STATE OF KARNATAKA -

Crl.P.No.4278/2023 disposed of on 26.09.2023.

17. In Prabhakar Tewari's case supra, the provisions of

special enactment was not invoked and only the offences

punishable under the IPC were invoked as against the accused

therein. So far as the present case is concerned, the offences

punishable under the provisions of the KCOCA has been

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invoked against the accused. As on the date of registration of

the present FIR against accused nos.1 & 2, a case in Crime

No.58/2017 registered invoking the provisions of KCOCA was

pending against them and they were enlarged on bail in the

said case. Therefore, I am of the opinion that in view of

restrictions found in Sections 22(4) & 22(5) of KCOCA, the

prayer made by accused nos.1 & 2 for grant of regular bail

cannot be entertained.

18. In so far as accused nos.9, 11, 14 & 16 are concerned,

they allegedly had arrived at the spot of crime along with other

assailants in two Innova cars provided to them by accused no.1

and had assaulted deceased Mahesh with deadly weapons and

committed his murder. The incident in question had taken place

at about 9.30 p.m. on 04.08.2023 when Mahesh was returning

from jail after he was released on bail in the criminal case

registered against him for committing the murder of Madan.

The vehicle in which Mahesh was travelling with his friends CW-

60 & CW-67 was intercepted by assailants-accused nos.3 to 16

and when Mahesh got down from his vehicle and tried to

escape, the assailants who were armed with deadly weapons

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assaulted him and committed his murder. The present crime

was committed in a public place where many vehicles had

stopped near a traffic signal light. Therefore, the public order

was at threat due to the act committed by the accused. This

goes to show that accused in this case have no regard or

respect to rule of law.

19. The Hon'ble Supreme Court in the case of ARJUN S/O

RATAN GAIKWAD VS THE STATE OF MAHARASHTRA & OTHERS

- 2024 INSC 968, in paragraph 15, has observed as under:

"15. As to whether a case would amount to threat to the public order or as to whether it would be such which can be dealt with by the ordinary machinery in exercise of its powers of maintaining law and order would depend upon the facts and circumstances of each case. For example, if somebody commits a brutal murder within the four corners of a house, it will not be amounting to a threat to the public order. As against this, if a person in a public space where a number of people are present creates a ruckus by his behaviour and continues with such activities, in a manner to create a terror in the minds of the public at large, it would amount to a threat to public order."

20. The weapons used by the assailants were subsequently

recovered during the course of investigation. The weapons

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which were recovered at the instance of accused nos.9, 11, 14

& 16 had blood stains on it and DNA test report would go to

show that the said blood stains matched with the DNA of the

deceased. After the incident, accused nos.9, 11, 14 & 16

escaped with the other assailants in the vehicle they had

arrived and all the assailants stayed in a private

accommodation and in the CCTV footage of the said place

which is collected by the Investigation Officer, the presence of

accused nos.9, 11, 14 & 16 along with other assailants is also

found.

21. Learned Counsel for the petitioners has submitted that

petitioners are in custody for the last nearly two years and the

trial in the case is yet to commence and accordingly considering

the period of petitioners incarceration, they are entitled to be

released on bail. In support of the said argument, they have

placed reliance on the judgment in Saddam Hussain's case

supra.

22. In Saddam Hussain's case supra, appellant nos.1 & 2 had

undergone incarceration for a period of 3 years 25 days and

appellant no.3 had undergone incarceration for a period of two

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years and six months and the only antecedent against them

was a case registered under Section 151 of Cr.PC. So far as the

petitioners herein are concerned, they are in custody for nearly

two years and considering the gravity of the offences and the

manner in which it is committed, I am of the opinion that their

prayer for grant of regular bail on the ground of their

incarceration cannot be entertained at this stage.

23. In the case of NEERU YADAV VS STATE OF UTTAR

PRADESH & ANOTHER - (2016)5 SCC 422, the Hon'ble

Supreme Court in paragraphs 13 to 15, has observed as under:

"13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the

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society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:

"Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.

14. E. Barrett Prettyman, a retired Chief Judge of US Court of Appeals had to state thus:

"In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn.

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Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematised restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive globe of faceless animations but as a perfect realisation, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity."

15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history- sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The

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law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner."

24. If the background of the accused persons and the nature

of allegations found against the accused are considered, I am

of the opinion that there is potential threat to the witnesses in

the present case. CWs-59 to 67 are the alleged eye-witnesses

to the incident in question and they are yet to be examined

before the Trial Court. Under the circumstances, considering

the totality of allegations made against the accused, gravity of

offence, the nature of evidence and also the antecedents of the

accused persons, I am of the opinion that at this stage, the

prayer made by the accused for grant of regular bail cannot be

entertained. Accordingly, the petitions are dismissed reserving

liberty to the petitioners to renew their bail application before