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1. : IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE24H DAY OF APRIL, 2020 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL PETITION No.1161 OF2020CONNECTED WITH CRIMINAL PETITION No.1384 OF2020CRL.P.1161/2020 BETWEEN Syed Akbar S/o Syed Subhan Aged about 46 years R/at No.46, 4th Main 3rd Cross, Bhuavaneshvar Nagar RT Nagar Post Bangalore – 560 032. ... Petitioner (By Sri. Mohammed Tahir, Advocate) AND State by Kalasipalya PS Bangalore Represented by State Public Prosecutor High Court Complex Building Bangalore – 560001. ... Respondent (By Sri. V. S. Hegde, SPP-2) This Criminal Petition is filed under Section 439 of the Code of Criminal Procedure, praying to enlarge the :
2. : petitioner on bail in Cr.No.214/2019 of Kalasipalya P.S., Bengaluru for the offence P/U/S143 147, 148, 307 r/w Sec.149 of IPC. CRL.P.1384/2020 BETWEEN Sadiqulla Ameen S/o Abdul Hameed Aged about 39 years R/a No.85, Chandni Chowk Road Shivaji Nagar Bangalore – 560 051. ... Petitioner (By Sri. Anes Ali Khan, Advocate) AND State by Kalasipalya P.S Bangalore Represented by The State Public Prosecutor High Court of Karnataka High Court Buildings Bangalore – 560 001. ... Respondent (By Sri. V.S. Hegde, SPP-2) This Criminal Petition is filed under Section 439 of the Code of Criminal Procedure, praying to enlarge the petitioner on bail in Cr.No.214/2019 registered by Kalasipalya Police Station, Bengaluru for the offence P/U/S143 147, 148 and 307 r/w 149 of IPC. These Criminal Petitions coming on for Orders, through video conferencing this day, the court made the following: :
3. : ORDER
Petitioner/Accused No.5 has filed Crl.P.No.1161/2020 and Petitioner/Accused No.6 has filed Crl.P.No.1384/2020 under Section 439 of Cr.P.C. seeking regular bail in Cr.No.214/2019 of Kalasipalya Police Station, Bengaluru for the offence punishable under Sections 143, 147, 148, 307 r/w Section 149 of IPC. In view of the fact that these accused are in judicial custody since their arrest, they have filed the present petitions seeking grant of regular bail in view of the grounds urged in the petitions.
2. Heard learned counsel for the petitioners and learned SPP-2 for the State. These petitions are disposed of through this common order.
3. The factual matrix of these petitions are as under: It is stated in the complaint statement recorded by injured – Varun at Victoria Hospital on 22.12.2019 that he is a RSS volunteer and doing steel business by occupation. On 22.12.2019 Sri Tejaswi Surya, M.P. of :
4. : Bangalore South had conducted a rally at Town Hall. It is stated that Varun had hired a Bounce two wheeler and had gone near the Town Hall and after attending the rally when he was returning to his home, near New Extension Kumbalagudu Road, Reddy Building, 4 to 5 unknown persons had come in two wheelers and all of a sudden assaulted on his back head, back, left ribs by means of choppers and iron long and took heel from the spot. The injured did not even know why he was assaulted. However, as a result of the assault, he fell down and was screaming for help. Due to the assault, he had sustained bleeding injuries and he was shifted to Victoria Hospital and admitted as an inpatient in the said hospital. During the course of investigation, respondent police arrested some of the persons who are arraigned as accused Nos.5 and 6 in the aforesaid crime.
4. In pursuance of filing of the complaint statement by the injured against the unknown persons, the case in crime No.214/2019 came to be registered for the aforesaid offences and thereafter, these petitioners/accused No.5 :
5. : and 6 were apprehended. It is stated that since from the date of their arrest, they are in judicial custody.
5. Sri Mohammed Tahir, learned counsel for accused No.5 in Crl.P.No.1161/2020 has taken me through the statement of complaint filed by the complainant being an injured. He contends that there is no specific overt act attributed against this accused alleged to have participated with other accused in commission of offence as narrated in the charge sheet laid by the IO relating to Crime No.214/2019. It is contended that initially the FIR was filed against the unknown persons; at the time of apprehending this petitioner and other persons, the police have not followed the procedure as contemplated under Section 54A of Cr.PC. Further, it is contended that no recovery either fact or material is made at the instance of accused persons which makes the entire voluntary statement infructuous. Further, it is contended that the police have not conducted any identification parade which is mandatory under Section 9 of Evidence Act to proceed with the case against this accused. :
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6. It is also contended that the investigating agency by invoking the relevant provisions of Unlawful Activities (Prevention) Act, 1967 and so also, under Section 120-B of IPC are seeking permission to file additional charge as contemplated under Section 173(8) of Cr.P.C. as a due deliberation. He has also taken me through Section 13(2) of the aforesaid Act which states that “whoever, in any way, assists any unlawful activity of any association declared unlawful under Section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. He contends that in the instant case, no notification is issued by the investigating agency seeking permission under Section 173(8) of Cr.P.C. relating to invoking the provision under the above Act to proceed against the accused.
7. He further contends that the present petition cannot be rejected merely based on CCTC footages relating to involvement of this accused. He contends that :
7. : the victim is already discharged from the hospital and absolutely he has no life threat due to the injuries sustained which is evident from the discharge summary report. He further contends that the petitioner is a car mechanic and his family consists of his wife and school going children. If he is kept behind the bars for a longer period, certainly it would affect the family members to eke out their livelihood. Lastly, it is contended that the accused is ready to abide by any terms and conditions to be imposed by this Court. On all these grounds he seeks to enlarge accused No.5 on bail.
8. Sri Anees Ali Khan, learned counsel for Accused No.6 in Crl.P.No.1384/2020 contends that the victim was in a fit state when he gave the statement before the police during investigation and he is already discharged from the hospital. The case is based upon the voluntary statements of the accused persons which are not admissible except for the recovery aspect. Further, no overt act of assault is attributed to this accused No.6. No incriminating articles used for the commission of the offence have been seized, except the mobile phone and a :
8. : two wheeler and the alleged recovery of weapons is at the behest of accused No.2 and 3 and not this petitioner. It is further contended that the overt act attributed to this petitioner is that he along with accused No.5 informed the movement of the injured complainant to Accused Nos.1 to 4, but there is no material as such. Accused No.7 is absconding since from the date of commission of offence and merely because the co-accused is absconding, it may not be a ground for rejection of the bail petition. This accused is in judicial custody since from the date of arrest without there being any direct overt act against him as regards involvement. This accused is the only bread winner of the family to eke out their life. If this accused is supposed to be kept behind the bars for a longer period certainly, the family members would be ruined in the society. Lastly, he submits that the accused is ready to abide by any terms and conditions to be imposed by this court while considering the bail petition. On all these grounds he seeks for allowing the bail petition. :
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9. Per contra, Sri V.S.Hegde, learned SPP-II for respondent – State has taken me through the statement of injured complainant as well as other charge-sheeted materials. Based upon his statement which was recorded on 22.12.2019, crime No.214/2019 came to be registered for the aforesaid offences. The injured has taken treatment in Victoria Hospital and thereafter he was shifted to private hospital for better treatment as indicated in the wound certificate. Injury Nos.1 to 6 are found to be grievous in nature which were inflicted with the means of chopper and iron long on head part, back and left ribs. On the basis of the involvement and after collection of evidence, petitioners/accused Nos.5 and 6 have been arrested as they have also participated with the other accused in commission of offence. On the basis of their statements, mobile phone and motor bike have been seized, by drawing a mahazar.
10. He further submits that accused No.5 is the leader of the gang participated in the conspiracy, supplied the arms used for the offences and further he has visited :
10. : scene of occurrence immediately after the incident. It is his submission that the accused persons have formed organized crime syndicate, conspired together to create terror and communal disturbance. The CCTV footage secured by the police clearly indicates the fact of assembly and conspiracy of the accused wherein accused Nos.5 and 6 have also participated in commission of the offence.
11. He further submits that the respondent police has laid the charge sheet in the above case for the aforesaid offences and the same has been received by the trial Court with a liberty to file additional charge sheet under Section 173(8) Cr.P.C. However, during the course of investigation, the I.O. has added Sections 13, 16, 18 of the Unlawful Activities (Prevention) Act, 1967 as the accused persons are involved in organized crime and they are the members of the organized crime syndicate and committed the conspiracy under Section 120(B) of IPC. Further, it is submitted that accused No.7 has been absconding and he is yet to be :
11. : traced and evidence has to be collected for his involvement.
12. He further contends that accused Nos.1 to 6 are under further interrogation and in that connection, in order to collect the evidence, the police have transacted with some other authorities. As such the custody of the accused is very much necessary. He further contends that the material objects such as DVRs, the weapon used for commission of crime and the blood stained clothes of the complainant have been sent to FSL for examination and the report is awaited. On the basis of the report, further investigation is necessary. He further contends that as the provisions of the Unlawful Activities (Prevention) Act, 1967 are invoked, the period of limitation to file the charge sheet is 180 days and in view of the continuing investigation, if the accused petitioners are released on bail, it may hamper the investigation process. He contends that in view of the gravity of the offence, the accused do not deserve to be released on bail. On all :
12. : these grounds he seeks for dismissal of the bail petitions filed by the petitioners/accused Nos.5 and 6.
13. It is in this context, it is relevant to refer to the FIR said to have been recorded by the Kalasipalya Police in Crime No.214/2019 and so also the statement of the witnesses inclusive of mahazar. The incident took place on 22.12.2019 at around 12.00 p.m. The injured victim – Varun who is the complainant had participated in a rally organized by RSS, wherein Sri Tejaswi Surya, Member of Parliament of Bangalore South had participated and spoke in favour of Citizenship Amendment Act. The victim came to the rally by booking Bounce two wheeler and after completion of the rally at 12.00 p.m. while returning to his house, four to five unknown persons are alleged to have come behind his two wheeler following him on the Kumbaragundi road ad Kalasipalya New Extension near Reddy Building and hit his two wheeler, as such, in order to ascertain what happened, victim turned back and while removing helmet, these unknown persons by using deadly weapons like chopper and iron long assaulted on his back :
13. : part, head, left side rib parts, as such, he fell down sustaining bleeding injuries. When he started screaming, those unknown persons ran away from the scene of crime. Thereafter, the injured was taken to Victoria Hospital where he was treated as inpatient. He had given his complaint statement before the Doctor and on the basis of the same, the case was registered initially against those unknown accused by recording FIR. The mahazar was drawn at the spot and the incriminating materials were seized. On the basis of the analysis and after collection of material evidence, Accused No.6 was arrested and upon his voluntary statement, accused No.5 was also arrested and his statement was recorded and a motor bike and mobile phone belonging to them were seized. On the statement made by the injured, the Kalasipalya Police registered an FIR against the accused persons in Crime No.214/2019 for the offences punishable under Sections 143, 147, 148, 120(B) 307 r/w Section 149 of IPC and after investigation, laid initial charge sheet for the above said offences with a liberty to file additional charge sheet under Section 173(8) Cr.P.C. if needed any further :
14. : investigation. During the course of investigation the investigating agency had invoked the provisions of the Unlawful Activities (Prevention) Act, 1967 and also Section 120(B) of IPC.
14. Learned counsel for the petitioners has taken me through Section 13(2) of the aforesaid Act which states that “whoever, in any way, assists any unlawful activity of any association declared unlawful under Section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. He contends that in the instant case, no notification is issued by the investigating agency for seeking permission under Section 173(8) of Cr.P.C. relating to invoking the provision under the above Act. He further contends that merely based on CCTC footings relating to involvement of these accused, the bail petitions cannot be rejected. It is their contention that the victim is already discharged from the hospital and absolutely he has no life threat due to the :
15. : injuries sustained which is evident from the discharge summary report.
15. It is relevant to note here that the incident took place on 22.12.2019 at around 12.00 p.m. On that day the injured complainant was taken to Victoria Hospital as an inpatient and he was discharged on the same day. But he took treatment in the other hospital for the injuries sustained. The injury certificate issued by the Doctor shows that injuries 1 to 6 are grievous in nature. But the injured was discharged from the Hospital after 7 days. The same reveals in the material evidence.
16. However, at a cursory glance of the entire materials secured by the IO regarding statement of witnesses and so also, the mahazar which was conducted in the presence of panch witnesses relating to the involvement of these accused and so also, using of deadly weapons as narrated in the charge sheet, it appears that there is no direct overt act attributed against these petitioners/accused Nos.5 and 6 relating to their involvement in the crime. It is their contention that in the :
16. : complaint itself the victim states that the attack made on him was executed by accused Nos.1 to 4 who are main assailants who assaulted the injured and it was based upon the voluntary statements recorded by the IO. But the complaint statement reveals that it was an assault made by unknown persons and that the complainant did not know for what reason they assaulted him with means of chopper and iron longs. The same could be tested only during trial. Learned SPP-II had concentrated on the statement of witnesses recorded by the I.O during the course of investigation in order to lay the charge-sheet against the accused and so also he had emphasized relating to infliction of injuries on the injured – complainant. Though the I.O. has laid the charge-sheet against the petitioners / accused nos.5 and 6, but however, the court should avoid elaborate documentation of merits while dealing with the petition for bail. Moreover, the court cannot go into the details of the material evidence to find out whether the said materials will be sufficient in establishing the guilt of the accused, as it is not a relevant consideration at this :
17. : stage to ascertain the probability or improbability of the prosecution case in respect of the involvement of the accused persons. Detailed scrutiny of the material evidence and so also elaborate documentation of merits akin to the statement of witnesses is not desirable at this stage and also should be avoided while passing an order on bail petitions. What is necessary for consideration of the bail petition is the foremost satisfaction about the prima facie case and not an exhaustive exploration of merits in respect of involvement of the accused in a charge-sheet laid by the I.O. against the accused. While considering the relief of grant of bail, the court has to take into consideration the gravity of the crime, the character of the material evidence and so also the status of the accused with reference to the victim and witnesses as has been cited in the charge-sheet and so also likelihood of the accused fleeing away from justice and so also the possibility of tampering with the witnesses. In the instant case, the I.O. has already laid the charge-sheet against the accused as contemplated under :
18. : Section 173 Cr.P.C. But keeping in view the contention urged by the learned SPP-II, it is deemed proper to impose stringent condition on the accused while grating bail. If bail is not granted, the family members of the accused would certainly be ruined in the society. On a meticulous consideration of the material evidence collected by the I.O. during the course of investigation, it is opined that there is substance in the contention of the counsel for the accused respectively to grant bail to the aforesaid accused, as sought for.
17. Further, Section 27 of the Indian Evidence Act relates to how much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The recovery and discovery concept has to be taken into consideration during the course of trial which is based upon the :
19. : material evidence secured by the IO during the course of investigation and has to be subjected to trial, examination-in-chief and cross examination of witnesses in accordance with law. Therefore, at this stage, it does not require to go in detail the aspect of discovery and recovery of the material objects and so also, detailed discussion for considering the bail petitions by reiterating facts in the statement of the witnesses. But however, learned SPP-II has taken me through the role played by these accused in commission of crime and the apprehension expressed by him that if accused Nos.5 and 6 are released on bail, certainly there shall be adverse impact on the society and also tracing of accused No.7 who is absconding, but it could be curtailed by imposing some stringent conditions to safeguard the interest of the prosecution where these petitioners/accused Nos.5 and 6 are in judicial custody since from the date of their arrest. The charge sheet has already been laid initially for the offences punishable under Sections 143, 147, 148, 307 read with Section 149 of IPC with a liberty to file additional charge sheet under Section 173(8) of Cr.P.C. as :
20. : the provisions of Unlawful Activities (Prevention) Act, 1967 and so also, Section 120-B of IPC have been invoked. But initial FIR indicates as to an offence under the IPC. However, at a cursory glance of the materials secured by the IO narrated in the charge sheet, and so also, the involvement of these accused are concerned, I deem it appropriate that petitioners/accused Nos.5 and 6 deserve for grant of bail. Accordingly, for the reasons stated above, I proceed to pass the following: ORDER
The petition filed by the petitioner/Accused No.5 in Crl.P.No.1161/2020 and the petition filed by the petitioner/Accused No.6 in Crl.P.No.1384/2020 under Section 439 of Cr.P.C. are hereby allowed. Petitioners/Accused Nos.5 and 6 shall be released on bail subject to the following conditions: i) Petitioners/Accused Nos.5 and 6 shall execute bond in a sum of Rs.1,00,000/- each, with two likesum sureties to the satisfaction of the VIII ACMM, Bangalore or the concerned Trial Court :
21. : relating to Crime No.214/2019 of Kalasipalya Police Station; ii) Petitioners/Accused Nos.5 and 6 shall co- operate with the Investigating Officer during the course of investigation. iii) Petitioners/Accused Nos.5 and 6 shall mark their attendance once in a month on the first week of Sunday between 10.00 a.m. and 5.00 p.m before the concerned SHO in Crime No.214/2019, till the completion of investigation or for a period of six months. iv) Petitioners/Accused Nos.5 and 6 shall not leave the District Head Quarters of Bengaluru City without prior permission from the competent court of law; v) Petitioners/Accused Nos.5 and 6 shall not indulge in any other criminal activities henceforth; :
22. : If Petitioners/Accused Nos.5 and 6 violate any of the above conditions, the bail order shall automatically stand ceased. Keeping in view the submission made by the learned SPP-II for the respondent – State, any observations made in this order shall not come in the way of the investigation being conducted by the investigating agency under the provisions of the Unlawful Activities (Prevention) Act, 1967 and so also, under Section 120-B of IPC relating to laying of additional charge sheet, if any, as contemplated under Section 173(8) of Cr.P.C. Keeping in view the submissions made by learned counsel for the petitioners in both these petitions, the Registry of this court is directed to forward the operative portion of this order, to the Superintendent of Central Prison, Parappana Agrahara where these accused are housing, for compliance. :
23. : A copy of this order shall also be forwarded to the Chief Metropolitan Magistrate, Bengaluru and to the VIII ACMM court where Crime No.214/2019 is pending. Sd/- JUDGE DKB