Full Judgment
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024 BEFORE THE HON’BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No.45/2024 BETWEEN : Raja @ Cat Raja S/o Elumalai Aged about 35 years Permanent Resident of Holalu Village, Dudda hobli Mandya District Karnataka - 571 402. … APPELLANT (By Sri Sandesh J Chouta, Senior Advocate for Sri Sunil Kumar S, Advocate) AND :
1. The State of Karnataka By Gubbi P.S. Rep. by Learned State Public Prosecutor High Court Building Complex Bengaluru - 560 001.
2. Sri Manoj Kuamr G N
S/o Narasimamurthy G C @ Kurimurthy Aged about 27 years R/a. Old Ak Colony Gubbi Town, Tumkuru Karnataka - 572 129. … RESPONDENTS (By Sri B Lakshman, HCGP for R1 R2 Served and unrepresented) --- This Criminal Appeal is filed under Section 14(A)(2)
of SC/ST (POA) Act praying to set aside the order dated 17.11.2023 Special C.C.No.2877/2022 passed by the Principal City Civil and Sessions Judge, Bengaluru CCH-1 and enlarge the appellant/accused No.2 on bail in Cr.No.131/2022 of Gubbi P.S. for the offence P/U/S 109, 120B, 143, 147, 148, 212, 302, 210 R/W 149 of IPC and Section 3(2)(v) of SC/ST (POA) Act and section 3(1)(i)(2)(3)(4) of KCOCA Act and etc.,
This Criminal Appeal having been heard and reserved for judgment, this day, SHIVASHANKAR AMARANNAVAR J, delivered the following;
JUDGEMENT
This appeal is filed by the appellant - accused No.2 praying to set aside the order dated 17.11.2023 passed in Special C.C. No.2877/2022 by the Principal City Civil and Sessions Judge, Bengaluru, whereunder, the bail application of this appellant - accused No.2 sought in respect of Crime No.131/2022 of Gubbi Police Station for the offences punishable under Sections 109, 120-B, 143, 147, 148, 212, 302, 201 r/w Section 149 of the Indian Penal Code, 1860 (for short hereinafter referred to as “IPC”), Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter referred to as “SC and ST Act”), and Section 3(1)(i)(2)(3)(4) of the Karnataka Control of Organized Crimes Act, 2000 (for short hereinafter referred to as “KCOC Act”) came to be rejected.
2. Heard learned Senior Counsel for the appellant-
accused No.2 and learned High Court Government Pleader for respondent No.1-State. Inspite of service of notice none appears for respondent No.2-complainant and he remained absent and unrepresented.
3. The case of the prosecution is that on 15.06.2022, Gubbi Police Station had registered a case in crime No.131/2022 against 5 to 6 unknown persons in connection with murder of one G.C. Narasimha Murthy, based on a complaint lodged by the son of the deceased
namely Sri Manoj K.G.N. On completion of the investigation in the case, the Deputy Superintendent of Police of Sira Sub-Division, Sira laid a charge sheet against 16 accused persons for the offences punishable under Sections 109, 120-B, 143, 147, 148, 212, 302, 201 read with Section 149 of IPC, Section 3(2)(v) of the SC and ST Act and Section (1)(i)(2)(3)(4) of the KCOC Act.
4. As per charge sheet, case of the prosecution is
that on 27.04.2022 at about 8.00p.m accused No.1 and accused Nos.2, 3, 9, 10 and 12 to 16 joined for a dinner in Sy.No.93 of Bikkegudda Village in Gubbi Taluk and entered into criminal conspiracy to murder the deceased and thereafter accused No.1 sought help of accused Nos.4 to 8 and 11 to murder the deceased. It is stated that accordingly accused Nos.1 to 12 entered into criminal
conspiracy at room No.106 of Srivari Lodge at Nitturu and in pursuance of such criminal conspiracy, on 15.06.2022 accused Nos.3, 9 and 10 gave information to accused Nos.4 to 8 and 11 about the location of the deceased and based on such information accused Nos.1 and 4 to 8 went to the spot in the car belonging to accused No.10 bearing number KA No.50-4498 and murdered the deceased by assaulting
him with deadly weapons. It is stated that even accused No.3 was at the spot, who had arrived at the place in a two
wheeler bearing number KA-06-EZ-6702. It is further stated that after coming to know the murder of the deceased accused Nos.2, 11 and 12 absconded from Srivari Lodge in a Swift car bearing number KA-02-MF-5154. The appellant-accused No.2 who was in judicial custody has filed bail application and same came to be rejected by the Sessions Court by impugned order, which is challenged in this appeal.
5. The learned Senior Counsel for appellant- accused No.2 would contend that the FIR has been registered against unknown assailants, the name of this
appellant-accused No.2 is not stated in the FIR. Accused No.1 is having motive with regard to business rivalry, as deceased had filed cases against the accused No.1. The deceased has gambling adda, accused No.1 had given complaint regarding gambling adda of the deceased. Assailants are accused Nos.1, 4 to 7, accused No.8 is driver who took accused No.1, 4 to 7 in the car to the spot. The only accusation against this appellant-accused No.2 is that
he joined with other accused persons at dinner on 27.04.2022 in the Form House at Bikkegudda Village in Gubbi Taluk and conspired to kill the deceased. The further allegation against this appellant-accused No.2 and other accused persons is conspiracy to kill the deceased in room No.106 of Srivari Lodge, Nitturu on 15.06.2022. The further allegation is accused No.2 has arranged accused Nos.4 and
5 at the instance of accused No.1 to assault the deceased. The further allegation against this appellant-accused No.2 is that after the incident he absconded from the lodge along with accused Nos.11 and 12. He contended that there is no call record of mobile phone of this appellant-accused No.2 that he had contacted with accused Nos.4 and 5 and told them to assault the deceased at the instance of the accused
No.1. He further submits that accused Nos.9 to 16 have been granted bail and they are similarly placed to that of
this appellant-accused- No.2. The confessional statement of appellant-accused No.2 has been recorded by the Deputy Superintendent of Police and it is not having evidenciary value as it is not recorded by the Superintendent of Police as required under the Provisions of Section 19 of the KCOC Act. He contends that the said aspect has been considered by the Co-Ordinate Bench of this Court in the judgment in Criminal Appeal No.1608/2022 filed by accused No.9.
Therefore, the said confessional statement made by accused No.2 is in admissible. He further contends that bail application of this appellant-accused No.2 came to be
rejected on the ground that he is having criminal antecedents and there are 16 criminal cases lodged against this appellant-accused No.2. He further argued that merely pendecy of criminal cases is not ground to reject the bail application of the appellant-accused No.2 and on that point he placed reliance on the decisions of the Hon’ble Apex
Court in the cases of Prabhakar Tewari Vs State of Uttar Pradesh and Another1 and Mohammad Azan Khan Vs State of Uttar Pradesh2. He further submits that the voluntary statement of co-accused is not substantial evidence, on that point he placed reliance of the Hon’ble Apex Court in the case of Surinder Kumar Khanna VS Intelligence Officer, Directorate of Revenue in Intelligence3. He further contends that confession made to the Police is inadmissible and confession of co-accused
(2020) 22 SCC 648 2022 SCC OnLine SC 653
(2018) 8 SCC 271
against other accused is inadmissible and on that point he placed reliance of the Hon’ble Apex Court in the case of Dipakbhai Jagdishchandra Patel Vs State of Gujarat and Another4. On these grounds, he prayed to allow the appeal and grant bail to the appellant-accused No.2.
6. Per contra, learned High Court Government Pleader would contend that this appellant-accused No.2 is main conspirator with accused No.1 to do away the life of
the deceased. This appellant-accused No.2 met accused No.1 in jail at Bangalore and as per request of accused No.1, he arranged accused Nos. 4 and 5 to assault the
deceased and also made arrangements for weapons. He contends that there are criminal antecedents and this appellant-accused No.2 is involved in 16 criminal cases. If appellant-accused No.2 is granted bail there is threat to the prosecution witnesses. Charge sheet materials show prima facie case against this appellant-accused No.2 for offences
(2019) 16 SCC 547
alleged against him. Considering these aspects, the learned Sessions Judge has rightly rejected the bail application of this appellant-accused No.2 by impugned order which does not call for interference by this Court. With this, he prays for dismissal of the appeal.
7. Having heard learned Senior Counsel for appellant-accused No.2 and learned High Court Government Pleader for respondent No.1-State, this Court has perused the impugned order and charge sheet records.
8. On going through the charge sheet papers it is
clear that there is no specific allegation against accused No.2 regarding his direct involvement in the alleged crime and he was not a member of the group which said to have caused assault on the deceased. The confession statement of this appellant-accused No.2 has been recorded by the Officer of the rank of Deputy Superintendent of Police as per provisions contained under Section 19 of the KCOC Act. The confession statement of accused is admissible, if it is
recorded by the Officer not below the rank of the Superintendent of Police. Therefore, whether confession statement of this appellant-accused No.2 is recorded by the Deputy Superintendent of Police is admissible or not is a matter of the Trial. The bail application of this appellant- accused No.2 has been rejected on the ground that he is having criminal antecedents and there are 16 criminal cases registered against him. The Hon’ble Apex Court in the case
of the Prabhakar Tewari Vs State of Uttar Pradesh and Another(supra) and Mohammad Azan Khan Vs State of Uttar Pradesh(supra) has held that merely pendency of criminal cases against accused is not a ground to reject his bail application and in case of Mohammad Azan Khan Vs State of Uttar Pradesh(supra), the Hon’ble Apex Court has granted bail to the accused who is involved in 87 criminal cases. Therefore, merely because appellant-accused No.2 is involved in 16 criminal cases is not a ground to reject his bail application.
9. The accusation against this appellant-accused
No.2 is that he is one of the leaders of the organized crime with accused Nos.1 to 4 and 5 in order to murder the deceased. He conspired with other accused is matter of the Trial and for that prosecution has to examine nearly 228 charge sheet witnesses. The apprehension of the prosecution is that if the appellant-accused No.2 is granted bail there is threat to the prosecution witnesses can be met with by imposing stringent conditions.
10. The appellant-accused No.2 has made out grounds for setting aside the impugned order and grant of bail. In the result, the following
ORDER
The appeal is allowed. The impugned order dated 17.11.2023 passed in Special C.C.No.2877/2023 by the Principal City Civil and Sessions Judge, Bengaluru is set-aside. The bail application is allowed and the appellant - accused No.2 is ordered to be released on bail in Crime No. 131/2022 of Gubbi Police Station (pending in Special C.C.No.2877/2023) subject to the following conditions:
(i) The appellant - accused No.2 shall execute a personal bond for a sum of Rs.2,00,000/- (Two lakh only), with two surety for the likesum to the satisfaction of the jurisdictional Court.
(ii) The appellant - accused No.2 shall not threaten the prosecution witnesses.
(iii) The appellant - accused No.2 shall not tamper the prosecution witnesses directly or indirectly.
(iv) The appellant - accused No.2 shall appear before the Trial Court on all dates of hearing unless exempted and co-operate in speedy disposal of the case.
(v) The appellant - accused No.2 shall not involve in commission of any similar offences and on FIR being registered, the Prosecution is at liberty to seek cancellation of his bail.
(vi) The appellant - accused No.2 shall not leave the jurisdiction of the Trial Court without permission of the Trial Court. Sd/- JUDGE DSP.