Full Judgment
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® IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL PETITION NO. 101502 OF 2025 C/W CRIMINAL PETITION NO. 101503 OF 2025 (439(Cr.PC)/483(BNSS) IN CRL.P.NO. 101502 OF 2025 BETWEEN: EDWIN THOMAS S/O. THOMAS V P AGED ABOUT 28 YEARS, R/O VADASERI HOUSE, TAJUR (TAUR) POST, KODASERE, CHELLAKUDI, TRISSUR, KERALA STATE-680721 NOW AT CHELLAKUDI, PUC ROAD. …PETITIONER (BY SRI. BIJU P. RAMAN AND SRI PRANAV S. KATAGERI, ADVOCATES FOR SRI. SAMPATH KUMAR S. METI, ADVOCATE)
Digitally signed by ASHPAK AND: KASHIMSA MALAGALADINNI Location: High STATE BY KARNATAKA Court of Karnataka, THROUGH HUBLI TOWN POLICE STATION, Dharwad Bench BY ITS PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, DHARWAD-580011. …RESPONDENT (BY SMT.GIRIJA S. HIREMATH, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BHARATIYA NAGARIK SURAKSHA SANHITA, SEEKING TO ENLARGE THE PETITIONER/ACCUSED NO.4 ON BAIL IN CRIME NO.112/2024 OF HUBBALLI TOWN POLICE STATION FOR THE OFFENCES -2- PUNISHABLE U/S 310(2), 311, 238, 312 OF BNS 2023, PENDING BEFORE THE I ST JUDICIAL FIRST CLASS MAGISTRATE HUBBALLI. IN CRL. P. NO. 101503 OF 2025 BETWEEN: FEBIN N AGED ABOUT 28 YEARS S/O SHAJU R/O NELLISERI HOUSE, NADUTHURUDU, RATION SHOP, MELUR, TRISSUR, KERALA STATE-680311. …PETITIONER (BY SRI. BIJU P. RAMAN AND SRI. PRANAV S.KATAGERI, ADVOCATES FOR SRI. SAMPATH KUMAR S METI, ADVOCATE) AND: STATE OF KARNATAKA THROUGH HUBLI TOWN POLICE STATION BY ITS PUBLIC PROSECUTOR HIGH COURT BUILDINGS, DHARWAD-580011, …RESPONDENT (BY SMT. GIRIJA S. HIREMATH, HCGP) THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C. (483 OF BHARATIYA NAGARIK SURAKSHA SANHITA), SEEKING TO ENLARGE THE PETITIONER/ACCUSED NO.3 ON BAIL IN CRIME NO.112/2024 OF HUBBALLI TOWN POLICE STATION FOR THE OFFENCES PUNISHABLE U/S 310(2), 311, 238, 312 OF BNS 2023 PENDING BEFORE THE 1 ST JUDICIAL FIRST CLASS MAGISTRATE HUBBALLI. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: -3-
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Since both petitions arise out of same Crime No.112/2024, they are heard together and taken up for disposal.
2. Heard Sri Biju P. Raman, learned counsel for the petitioners assisted by learned counsel Sri Pranav S.Katageri and Smt. Girija S. Hiremath, learned High Court Government Pleader for respondent - State.
3. Petitioners in these two petitions are accused
No.4 and accused No.3 respectively. They have been arrested by the investigation agency in respect of the Crime No.112/2024, registered by Hubballi Town Police.
4. Facts in the nutshell which are utmost
necessary for disposal of these petitions are as under: A complaint came to be lodged by Sri Rahul Surve with Hubballi Town Police Station on 08.11.2024 alleging that at about 3:30 a.m. on 08.11.2024 when the -4-
complainant was proceeding in his Hyundai Creta Car bearing No.KA-19/MH-0995 from Gadag - Hubballi side along with Praveen Pise with cash in the car to the tune of Rs.7,00,000/-, 10 - 12 persons came in two Innova cars and intercepted the free movement of the car driven by the complainant. When the car was made to halt inmates of those two Innova cars, got down armed with deadly weapons and picked up the quarrel with the complainant stating that complainant had dashed against the car driven by those persons and did not stop the vehicle and ran away from the spot. Thereafter accused persons and others overpowered the complainant and his companion- Praveen Pise under the knife point and also assaulted them with hands and knives and caused blood injuries and
thereafter snatched away mobile telephone and documents.
5. One of them entered into the car, driven by the complainant and drove the same and stopped the car near ‘Bhogi Bhogi Hotel’. Thereafter, they forcibly took -5-
Rs.7,00,000/- which was kept in the car at about 4:30 a.m. After they left the place, the complainant and his friend Praveen proceeded to the police station and lodged the complaint.
5. Police registered the case initially against unknown persons. Thereafter, police conducted detailed
investigation collected necessary information through CCTV etc., and then apprehended accused No.1 - Farooq. The police also arrested the petitioners - Edwin and Febin at Delhi on 22.11.2024 and brought them to Bengaluru without informing the Delhi Police, based on the voluntary statement given by accused No.1. After arrest of petitioner investigating agency recorded the voluntary statement of the present petitioners pursuant to which, from the custody of the Edwin, the police were able to seize cash of Rs.10,000/- and from the custody of Febin, investigation agency was able to recover cash of Rs.15,000/-. The voluntary statement of both Edwin and Febin would reveal that Edwin had got Rs.1,50,000/- to his -6- share in the money that was robbed from the complainant and Febin got Rs.2,00,000/- to his share.
6. Voluntary statements of petitioners would
further disclose that both of them have purchased i-phone 16 Pro mobile handsets and valuable cloths and balance amount cash held by them was recovered as referred to supra. After completion of the investigation, police have filed the charge sheet against the petitioners.
7. Petitioners did approach the District Court for grant of bail. Learned District Judge on merits, rejected both petitions filed by the petitioners. Thereafter, petitioners are before this Court.
8. Sri Biju P.Raman, learned counsel for the petitioners reiterating the grounds urged in the petitions vehemently contended that the very arrest of the present petitioners is incorrect and illegal.
9. He would further contend that soon after the investigation agency illegally took the petitioners to -7- custody in Delhi, petitioners did approach the Hon’ble High Court of Delhi with a habeas corpus petition.
10. It is his further contention that the Hon’ble High
Court of Delhi, directed the Investigation Officer to be present personally on the next date of hearing and the Investigation Officer tendered unconditional apology for not having informed the Delhi Police when petitioners were taken away from Delhi to Bengaluru. Therefore, prima
facie the arrest of the petitioners is illegal. Therefore in such circumstances, the petitioners are entitled to be enlarged on bail as is held by the Hon’ble Apex Court in the case of Directorate of Enforcement v/s Subhash Sharma in Special Leave Petition (Crl.) No.1136/2023 disposed of on 21.01.2025 and in the case of Vihaan Kumar v/s State of Haryana and another in Special Leave Petition (Crl.) No.133/2024 dated 06.02.2025 and sought for grant of bail.
11. His second contention for grant of bail is that except voluntary statement, there is no independent -8-
investigation conducted by the investigation agency and petitioners have been falsely implicated in the case as they were not at all present in the place of incident as on the date of incident as they were admittedly picked up from Delhi and brought to Hubballi illegally.
12. The third submission that has been canvassed
for grant of bail by the learned counsel for the petitioners is that injured persons have sustained only simple injuries and the present petitioners are no way connected with the said injuries and no material objects like deadly weapons were recovered from the custody of the present petitioners. Therefore, prima facie there is no nexus between the present petitioners and the incident. As such, continuation of the accused petitioners in judicial custody is no longer warranted.
13. Per contra, Smt.Girija S. Hiremath, learned
High Court Government Pleader for respondent - State while opposing the bail grounds would contend that in a matter of this nature individual overt acts looses its -9- significance inasmuch as very nature of the offence envisages that act of one person would be binding on the act of others.
14. She would further contend that voluntary
statement of accused would go to show that he came into acquaintance with the present petitioners through Bharath @ Putty Nair of Mangalore when these petitioners were in Balehonnur Jail. It is also her case that accused No.1 met the present petitioners through Mohammed Junaine who was also in prison.
15. It is also her case that plea of alibi pressed into service by the learned counsel for the petitioners cannot be countenanced in law as it is a weak piece of defence and to be established during the trial.
16. She would further contend that even though
injury sustained by the injured complainant-party is simple in nature, very fact that knife has been recovered and it has been used in the incident would be sufficient enough - 10 - prima facie to attract the offence alleged against the petitioners and thus sought for dismissal of the petitions.
17. She further argued that very fact petitioners
have suppressed the previous criminal case as could be seen from the voluntary statement of the accused No.1- Farooq as to how and when they were in Balehonnur Jail itself exposes the hollowness in the claim lodged by the petitioners and therefore, sought for dismissal of the petitions.
18. Having heard the arguments of both sides, this Court perused the material on record meticulously.
19. On such perusal of the material on record,
admittedly the petitioners have been apprehended by the investigation agency from Delhi. The only mistake that the Investigation Officer said to have committed while shifting the petitioners from Delhi to Hubballi is not informing the Delhi Police. In that regard, the Investigation Officer has already tendered unconditional apology in a habeas corpus petition filed by the petitioners before the Hon’ble High
- 11 - Court of Delhi and placing the unconditional apology, it is the petitioners who withdrew the habeas corpus petition.
20. Therefore, the contentions now urged on behalf
of the petitioners that there is illegal arrest in not following the required legislative safeguards at the time of arrest would loose its significance. At the most, it can be an irregularity for which there is already unconditional apology tendered by the Investigation Officer which has been accepted and no further action has been taken by the petitioners.
21. Further, it is always open for the petitioners to take appropriate action insofar as improper arrest is
concerned. As such, the said procedural lapse does not favour the petitioners in getting an order of bail under Section 483 of Bharatiya Nagarik Suraksha Sanhita (For Short ‘BNSS’). Therefore, first contention urged on behalf of the petitioners, cannot be countenanced in law.
22. This would take us to the next limb of argument pressed into service by the counsel for petitioners namely - 12 -
the confession cannot be pitted against the petitioners while accepting the request of the petitioners for grant of bail. It is no doubt true that a confession statement cannot be pressed into service by the prosecution. However, the voluntary statement of the accused recorded by the investigation agency and discovery of the fact therein would be an exception to the confession as is envisaged under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (‘BSA’, for short). For ready reference Section 23 of the BSA is culled out hereunder:
“23. Confession to police officer.
(1) No confession made to a police officer shall be proved as against a person accused of any offence.
(2) No confession made by any person while he is in
the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him: 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 - 13 -
to a confession or not, as relates distinctly to the fact discovered, may be proved.”
23. On bare perusal of the proviso to Section 23 of
BSA would make it clear that such of the portion of the confession statement whereunder the prosecution agency is able to discover the information relating to the crime is a relevant fact and should be proved before the Court of Law during the trial.
24. Therefore, at this stage of considering the bail
application, the argument that is put forth on behalf of the petitioners that the confession of the petitioners is only basis for filing the charge sheet against the petitioners cannot be countenanced in law.
25. Further, there is seizure of cash of Rs.10,000/-
and Rs.15,000/- from the petitioners respectively pursuant to voluntary statement given by the petitioners herein. Whether at all the said recovery is valid or not is to be tested during the trial and at this stage, this Court cannot - 14 - hold a mini trial to assess the merits and demerits of the case.
26. The third ground that is urged in behalf of the
petitioners for accepting the bail request is that injured has suffered only simple injury and in the absence of any weapon being seized, pursuant to the voluntary statement of the present petitioners, there is no nexus between the incident and the petitioners.
27. In this regard, as is rightly contended on behalf
of the prosecution, mere non recovery of the deadly weapon from the custody of the petitioners would not ipso facto render the case of the prosecution as doubtful.
28. Prima facie, the voluntary statement given by
the accused No.1 whereunder, the accused No.1 being the resident of Ullal Halikot, Mangalore, came into contact with the present petitioners through Mr.Bharat from Mangalore, itself shows that even though petitioners are residents of different places, they have hatched a plan to rob the complainant and their presence at the spot is sufficiently
- 15 - established by collecting necessary materials by the investigation agency.
29. Whether at all the petitioners were also found in
the group which travelled in two Innova Cars or not, having regard to the fact that incident has taken place between 3.30 a.m. to 4.30 a.m. on 08.11.2024, is a matter that has to be adjudicated by the learned Trial Judge in the trial by assessing the prosecution evidence in a judicious manner.
30. It is too premature for this Court to form an opinion as to the non involvement of the present petitioners in the incident.
31. Thus, desisting from holding a mini trial when
the prima facie materials are considered contained in charge sheet, this Court is satisfied that prima facie there is nexus between the present petitioners and the incident. - 16 -
32. Suffice to say that materials on record, at this stage, would not warrant exercise of special discretionary powers vested in this Court under Section 483 of BNSS.
33. Further, it is always open for the petitioners to renew their request for grant of bail by filing successive bail request if there are any positive changed circumstances in the case.
34. Reserving such liberty for the petitioners, following:
ORDER
Petition is meritless and hereby dismissed. SD/- (V.SRISHANANDA) JUDGE CLK,KAV CT:GSM List No.: 1 Sl No.: 9