- 1 - CRL.P No.100576 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE19H DAY OF JUNE, 2023 R BEFORE THE HON'BLE MR JUSTICE V.SRISHANANDA CRIMINAL PETITION No.100576 OF2023BETWEEN: SHRI. YUVARAJ NIMBALKAR, S/O. SADASHIV NIMBALKAR, AGED:
40. YEARS, OCC: AGRICULTURE, RESIDING AT: SAI NAGAR, RATNA CIRCLE, MUDHOL, DIST: BAGALKOTE, PIN- 587313. …PETITIONER (BY SRI. SURAJ MUTNAL, ADVOCATE) AND: THE STATE OF KARNATAKA, THROUGH KARATAGI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD- 581100 …RESPONDENT (BY SMT. GIRIJA S. HIREMATH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION439OF CR.P.C. SEEKING TO ALLOW THE PRESENT PETITION, ENLARGE THE PETITIONER ON BAIL IN S.C.No.89/2021 (KATAGI P.S. CRIME No.207/2020) IMPLICATING HIM FOR ALLEGED OFFENCES PUNISHABLE U/SEC. 302, 307, 109 R/W34OF IPC PENDING ON THE FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE, KOPPAL SITTING AT GANGAVATI. THIS PETITION, COMING ON FOR ORDER
S, THIS DAY, THE COURT MADE THE FOLLOWING: - 2 - CRL.P No.100576 of 2023 ORDER
Heard Sri.Suraj Mutnal, learned counsel for the petitioner and learned High Court Government Pleader for respondent - State.
2. Petitioner is accused No.3 facing charges for the offence punishable under Sections 302 and 307 of IPC in respect of an incident that has occurred on 17.10.2020 wherein a suo moto complaint came to be lodged by the police personnel who was on patrolling duty.
3. Gist of the charge sheet materials would go to show that sister of accused No.1 by name Triveni belonging to Hindu Maratha community married one Vinod Malali of Hindu Raddy community on 12.05.2020 under the Special Marriage Act and got registered the same with the Sub-Registrar, Gangavathi. Being enraged with inter caste marriage, accused No.1 who is the brother of Triveni gave an offer (supari) to kill his sister with promise to pay money to accused No.4, who in turn introduced accused No.2 for murder of sister of accused No.1. The role - 3 - CRL.P No.100576 of 2023 assigned to the present petitioner in the charge sheet is that he actively co-operated with accused No.2 inasmuch as he has supplied the weapon used in the incident and also gave his Hero Honda Splendor Plus motorcycle without the registration number (removing the number plate) which has been used in the incident.
4. The petitioner - accused earlier approached this Court and bail was granted by this Court taking note of the grounds urged in the petition in Criminal Petition No.100572/2021 by order dated 05.04.2021.
5. Husband of Smt.Triveni, who is also an injured in the said incident, being aggrieved by grant of bail, filed a petition before the Hon'ble Apex Court in SLP (Crl.) No.9180/2021 seeking cancellation of bail.
6. The petitioner herein was notified. After hearing the parties and taking note of the contentions urged on behalf of the injured victim and the State of Karnataka and the present petitioner, the Hon'ble Apex Court recorded a - 4 - CRL.P No.100576 of 2023 categorical finding that the role assigned to the present petitioner cannot be distinguished from the role assigned to the main assailant having regard to the prosecution had invoked Section 34 of IPC and cancelled the bail order granted to the present petitioner.
7. However, in paragraph No.13 of the said order, the Hon'ble Apex Court reserved liberty for the petitioner to renew his prayer for grant of bail after the injured is examined and also other vital witnesses.
8. The present petitioner has now filed the present successive bail petition even though material witnesses are not yet examined.
9. Reiterating the grounds urged in the petition, learned counsel for the petitioner, Sri.Suraj Mutnal vehemently contended that before the Hon'ble Apex Court the injured victim failed to bring it to the notice of the Hon'ble Apex Court that an additional charge sheet came to be filed and three more accused persons were arraigned - 5 - CRL.P No.100576 of 2023 as additional accused persons and in which case, the decision of the Hon'ble Apex Court would have been something different than cancellation of bail and therefore sought for grant of bail.
10. To a specific query, he has stated that none of the prosecution witnesses are examined before the trial Court, but he has filed successive bail application on different grounds.
11. Learned High Court Government Pleader opposes the grounds urged in the petition by contending that the ground urged on behalf of the petitioner that filing of additional charge sheet would have a bearing on the merits of the case and present petitioner would be entitled to grant of bail cannot be countenanced in law inasmuch as it would amount to an appeal over the order of the Hon'ble Apex Court.
12. In view of the rival contentions of the parties, this Court perused the materials on record meticulously.-. 6 - CRL.P No.100576 of 2023 13. The prime contention on which the successive bail petition is filed on behalf of the petitioner is that Sri.Vinod Malali who is the husband of deceased Triveni and also an injured, while approaching the Hon'ble Apex Court for cancellation of bail, did not bring it to the notice of the Hon'ble Apex Court that an additional charge sheet came to be filed arraigning three more accused persons in the case and therefore, the Hon'ble Apex Court recording a finding that Section 34 of IPC would be applicable and cancellation of bail is incorrect.
14. Such a contention cannot be countenanced in law inasmuch as it need not be restricted that common intention should be shared by less than four people. There is no bar for the prosecution to invoke Section 34 of IPC where number of accused is five or more than five persons.
15. It must be borne in mind that it is not the number of accused which would decide whether accused person shared common intention or common object.-. 7 - CRL.P No.100576 of 2023 However, as a routine, the police/investigating agency without noticing the cardinal principles governing common intention and common object, would invoke Section 34 of IPC if the number of accused is less than five and if the number of accused is more than five, the police would invoke Section 149 of IPC where the common object is said to have been shared by the accused persons.
16. It is to be emphasised that there is a clear and subtle difference between two phenomena governing the criminal jurisprudence. In case of accused person charged with offence under Section 34 of IPC, if he has shared common intention. In case of an accused who shared common object, same is punishable under Section 149 of IPC.
17. The ingredients to attract sharing of common object is altogether different. In case of common intention pre-concert among the accused persons is very much necessary; but in case of common object such a pre- concert among the accused persons is unnecessary.-. 8 - CRL.P No.100576 of 2023 Further, in case of common object shared by few of the accused persons in doing a wrong thing would be shared by other accused persons on the spot as well. Again, in case of common object, presence and participation of accused person has to be established by the prosecution in order to attract the offence under Section 149 of IPC.
18. Few other differences can also to be traced out between two. But for the purpose of discussion with regard to the merits of the present petition, the above parameters would be sufficient.
19. In the background of above, when this Court appreciates the facts involved in the matter in the light of the argument put forth on behalf of the petitioner, only on the ground that three more accused persons have been arraigned subsequently as additional accused by filing additional charge sheet by the prosecution itself would not improve the case of the petitioner to any extent especially when the Hon'ble Apex Court has categorically recorded a finding that the action attributable to accused No.1 and 2 - 9 - CRL.P No.100576 of 2023 would be equally attributable to the present petitioner who is accused No.3.
20. Any way, it is for the parties to put forth their respective rival contentions on merits of the matter before the trial Court and it is too premature for this Court at this stage to form a definite opinion as to the role to be assigned to the present petitioner.
21. As rightly contended by the learned High Court Government Pleader, this Court cannot sit over the order passed by the Hon'ble Apex Court as if it is an Appellate Court in entertaining the successive bail request only on the ground that additional charge sheet is filed.
22. Further, the observation made by the Hon'ble Apex Court that the petitioner can renew his request after the injured, Vinod Malali is examined and other vital witnesses are examined on behalf of prosecution can be made use of by the petitioner, if there is positive changed - 10 - CRL.P No.100576 of 2023 circumstance. Such a stage is yet to be reached in the case on hand.
23. Accordingly, viewed from any angle, this Court is of the considered opinion that no ground is made out by the petitioner muchless good grounds to entertain his successive bail request.
24. Hence, the following: ORDER
Criminal petition is rejected. Sd/- JUDGE SH List No.:
1. Sl No.: 6