Tejas Kumar D. S/O. Dugalappa Vs. State by Vijayanagar Police Represented by State Public Prosecutor - Court Judgment

Excerpt:
- code of civil procedure, 1908. section 10: [subhash b. adi,j] reference issue referred was as to whether termination of workman is justified or not appointing authority i.e. state being necessary party, not impleaded - held, award cannot be passed.-- section 11: doctrine of res judicata held, doctrine cannot be invoked in an issue which is not adjudicated before court.orderk.n. keshavanarayana, j.1. in this petition filed under section 439 cr.p.c, the petitioner who has been arraigned as accused no. 2 in crime no. 386 of 2008 of vijayanagar police (c.c. no. 20389 of 2008 on the file of the on the file of the iv additional chief metropolitan magistrate, bangalore city, for the offence punishable under sections 143, 144, 147, 148, 302 r/w. section 149 i.p.c., has sought for an order for his enlargement on bail.2. according to the prosecution case, the said case was registered for the offence punishable under section 302 r/w. section 34 of ipc based on the complaint said to have been lodged by one vishnu, s/o. h.p. venkatappa at about 10.30. p.m. on 03.08.2008. even according to the complaint allegations, the complainant was not an eyewitness to the alleged murder. according to him, he came to know about the incident through phone from one of his relative raghu and immediately he came to the scene of occrrence and saw his brother-in-law karinarasimha lying dead, and on enquiry with his son, karthik (cw.18), he came to know that the deceased was assaulted by j.p. jagadeesh, teja, thimmenahalli gunda @ kariya and others.3. on the basis of the said allegations, the petitioner was arraigned as accused no. 2. during investigation, the petitioner was arrested on 29.08.2008 and was subjected to judicial custody. his application filed for bail before the learned sessions judge came to be rejected. therefore, he has presented this petition for bail.4. learned counsel for the petitioner contended that the investigation papers produced along with the charge sheet, now filed by the investigation officer, do not prima facie indicate the involvement of the petitioner in the alleged crime and therefore, there are no reasonable grounds to believe that the petitioner is guilty of any offence punishable with death or life imprisonment, as such, he is entitled to be enlarged on bail.5. on the other hand, learned government pleader representing the respondent-state, contended that the materials available on record prima facie indicate that the petitioner herein was also one of the member of the unlawful assembly sharing common object and in furtherance of the common object, he has; committed the murder of the deceased karinarasimha, and therefore, there are reasonable grounds to believe that the petitioner is guilty of the offence punishable with death or life imprisonment, as such, he is not entitled to be enlarged on bail.6. even according to the complainant, he came to know about the involvement of the assailants through his son karthik, who has been cited as cw. 18 in the charge sheet. perusal of the copy of the statement said to have been made by cw. 18 indicates that he has not disclosed the name of the present petitioner as one of the assailants. no overt-act is attributed against the petitioner and his presence also is not indicated in the statement of cw.18. even the further statement of cw. 18 do not indicate the presence of the petitioner at the scene of occurrence. the statements of other material witnesses also do not indicate the involvement of the petitioner herein in the commission of offence.7. having regard to the facts and circumstances of the case and the materials available on record, at this stage, there are no reasonable grounds to believe that the petitioner is guilty of the offence alleged. admittedly, investigation is already completed and charge sheet has been laid. therefore, the question of the petitioner interfering with the investigation does not arise. the prosecution apprehension with regard to tampering or terrorising the prosecution witnesses by the petitioner and fleeing away from justice could be allayed by imposing conditions. therefore, the petitioner is entitled to be enlarged on bail subject to conditions.8. accordingly, the petition is allowed the petitioner is ordered to be enlarged on bail subject to his executing a personal bond for a sum of rs. 25,000/- with two sureties for the like-sum to the satisfaction of the jurisdictional court and subject to further condition that he shall not tamper or terrorise the prosecution witnesses in any manner, that he shall appear on all hearing dates before the jurisdictional court without fail and that he shall not indulge in any acts similar to the one alleged against him.

Judgment:
ORDER

K.N. Keshavanarayana, J.

1. In this petition filed under Section 439 Cr.P.C, the petitioner who has been arraigned as Accused No. 2 in Crime No. 386 of 2008 of Vijayanagar Police (C.C. No. 20389 of 2008 on the file of the on the file of the IV Additional Chief Metropolitan Magistrate, Bangalore City, for the offence punishable under Sections 143, 144, 147, 148, 302 r/w. Section 149 I.P.C., has sought for an order for his enlargement on bail.

2. According to the prosecution case, the said case was registered for the offence punishable under Section 302 r/w. Section 34 of IPC based on the complaint said to have been lodged by one Vishnu, S/o. H.P. Venkatappa at about 10.30. p.m. on 03.08.2008. Even according to the complaint allegations, the complainant was not an eyewitness to the alleged murder. According to him, he came to know about the incident through phone from one of his relative Raghu and immediately he came to the scene of occrrence and saw his brother-in-law Karinarasimha lying dead, and on enquiry with his son, Karthik (CW.18), he came to know that the deceased was assaulted by J.P. Jagadeesh, Teja, Thimmenahalli Gunda @ Kariya and others.

3. On the basis of the said allegations, the petitioner was arraigned as Accused No. 2. During investigation, the petitioner was arrested on 29.08.2008 and was subjected to judicial custody. His application filed for bail before the learned Sessions Judge came to be rejected. Therefore, he has presented this petition for bail.

4. Learned counsel for the petitioner contended that the investigation papers produced along with the charge sheet, now filed by the Investigation Officer, do not prima facie indicate the involvement of the petitioner in the alleged crime and therefore, there are no reasonable grounds to believe that the petitioner is guilty of any offence punishable with death or life imprisonment, as such, he is entitled to be enlarged on bail.

5. On the other hand, learned Government pleader representing the Respondent-State, contended that the materials available on record prima facie indicate that the petitioner herein was also one of the member of the unlawful assembly sharing common object and in furtherance of the common object, he has; committed the murder of the deceased Karinarasimha, and therefore, there are reasonable grounds to believe that the petitioner is guilty of the offence punishable with death or life imprisonment, as such, he is not entitled to be enlarged on bail.

6. Even according to the complainant, he came to know about the involvement of the assailants through his son Karthik, who has been cited as CW. 18 in the charge sheet. Perusal of the copy of the statement said to have been made by CW. 18 indicates that he has not disclosed the name of the present petitioner as one of the assailants. No overt-act is attributed against the petitioner and his presence also is not indicated in the statement of CW.18. Even the further statement of CW. 18 do not indicate the presence of the petitioner at the scene of occurrence. The statements of other material witnesses also do not indicate the involvement of the petitioner herein in the commission of offence.

7. Having regard to the facts and circumstances of the case and the materials available on record, at this stage, there are no reasonable grounds to believe that the petitioner is guilty of the offence alleged. Admittedly, investigation is already completed and charge sheet has been laid. Therefore, the question of the petitioner interfering with the investigation does not arise. The prosecution apprehension with regard to tampering or terrorising the prosecution witnesses by the petitioner and fleeing away from justice could be allayed by imposing conditions. Therefore, the petitioner is entitled to be enlarged on bail subject to conditions.

8. Accordingly, the petition is allowed The petitioner is ordered to be enlarged on bail subject to his executing a personal bond for a sum of Rs. 25,000/- with two sureties for the like-sum to the satisfaction of the Jurisdictional Court and subject to further condition that he shall not tamper or terrorise the prosecution witnesses in any manner, that he shall appear on all hearing dates before the Jurisdictional Court without fail and that he shall not indulge in any acts similar to the one alleged against him.