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Vazeer Khan & Others v/s The State of Karnataka, Rep. by State Public Prosecutor, Bangalore


    Criminal Petition No. 2293 of 2020

    Decided On, 29 May 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE JOHN MICHAEL CUNHA

    For the Petitioners: C.V. Nagesh, Senior Counsel, Muiz Ahmed Khan Usmani, S. Ismail Zabiulla, Advocates. For the Respondent: V.M. Sheelavant, Spp-I, B.G. Namitha Mahesh, HCGP.



Judgment Text


(Prayer: This Criminal Petition is filed U/S 439 Cr.PC praying to enlarge the petitioners on Bail in Cr.No.71/2020 of Jagajeevanram Nagar P.S., Bangalore for the offences punishable Under Sections 3, 4 of Prevention of Destruction and Loss of Property Act and Sec.51(B) of Disaster Management Act and Sections 506,147,148,143,149, 324,332,307,269, 323,201,271,353 of IPC.)

Through Video Conference:

1. Petitioners, in all, 126 persons were taken into custody by the respondent - Police on the allegation that, on 19.04.2020, at about 6.30 p.m. and 6.50 p.m., the petitioners/accused persons formed into an unlawful assembly with intention to spread Corona infection and obstructed the medical officers attached to the BBMP from lawfully discharging their official duties and also obstructed the complainant and the police personnel on duty by pelting stones on the police and assaulting them with knife, rods and clubs, making an attempt on the life of the police personnel and during the occurrence, damaged the chairs, tables kept in the check-post and caused extensive damage to the public property.

2. The PSI of JJ Nagar Police Station CW.1 lodged a report based on which Crime No.71/2020 was registered and the petitioners herein were arrested on different dates and were remanded to judicial custody. The application filed by the petitioners for their release on bail has been rejected by the Closure Period Judge at Bengaluru (Court of Principal City Civil and Sessions Judge at Bengaluru) in C.Crl.Misc.No.41/2020 dated 05.05.2020, mainly on the ground that the facts and allegations made in the FIR reveal that on the date of the incident, all the petitioners were armed with deadly weapons and damaged public property and caused injury to public servants. It has been observed that the accused persons were motivated to commit rioting with a preplan and in the process, assaulted public servants and violated the promulgation notified by the Government. Further observing that the petitioners were required to be identified by the witnesses and that the Investigating Officer had to collect evidence to assess the total damage caused to public property, learned Sessions Judge found it proper to reject the application. On dismissal of the said application, petitioners have approached this Court under section 439 Cr.P.C.

3. I have heard Sri.C.V.Nagesh, learned Senior Counsel appearing for Sri.Muiz Ahmed Khan Usmani, learned counsel, on behalf of petitioners and Sri.V.M.Sheelavant, learned SPP-I on behalf of respondent State.

4. The State has filed statement of objections opposing the bail inter alia contending that prima facie material has been collected establishing the presence of the petitioners at the spot of occurrence. The petitioners were found indulging in similar offences at five different places in respect of which five cases have been registered against the petitioners in Crime Nos.70/2020, 71/2020, 72/2020, 73/2020 and 74/2020. Each incident is a separate offence. During the occurrence, complainant and other witnesses have suffered grievous injuries. The statements of the eyewitnesses also have been recorded. Amongst the petitioners, seven were tested positive for COVID- 19 and hence, accused persons were quarantined at Haj Bhavan. Under the said circumstances, if the petitioners are released on bail, they would once again enter the place of incident, which is presently under seal down and there are chances of infection spreading to the entire locality. Further it is stated that the interim charge sheet has been filed against the petitioners with respect to the offences under sections 3 and 4 of the Prevention of Destruction and Loss of Property Act, 1981 and under sections 143, 147, 148, 307, 201, 353, 333, 323, 324, 506, 269, 271, 188 read with 149 IPC and section 51(b) of the Disaster Management Act. Further investigation is still in progress and permission under section 173(8) of Cr.P.C. is sought before the Trial Court. Further contending that the sovereignty, fraternity and integrity of the country takes precedence over Article 21 of the Constitution, respondent No.1/State has sought for dismissal of the petition.

5. Sri.C.V.Nagesh, learned Senior Counsel appearing for the petitioners however contended that the allegations made against the petitioners are bald in nature. None of the petitioners were named in the FIR. All the petitioners were arrested on suspicion and have been unlawfully detained. The circumstances projected by the prosecution indicate that there was no intention whatsoever on the part of the petitioners to cause any grievous injury to the petitioners much less an attempt to murder. The wound certificates relied on by the prosecution indicate that the complainant and other witnesses have suffered some abrasions and contusions which do not make out ingredients of section 307 IPC. There is absolutely no material to sustain the charge under section 307 IPC. The other offences alleged against the petitioners are punishable with imprisonment not more than three years. Even if entire material collected by the Investigating Agency is accepted, no overt acts are forthcoming against the petitioners. Under the said circumstances, the custody of the petitioners is not required to be extended any further.

6. On careful consideration of the submissions made at the Bar and on going through the material on record, it is noticed that investigation is completed and charge sheet is already been laid before the jurisdictional court alleging commission of offenses under sections 3 and 4 of the Prevention of Destruction and Loss of Property Act and under sections 143, 147, 148, 307, 201, 353, 333, 323, 324, 506, 269, 271, 188 read with 149 IPC and section 51(b) of the Disaster Management Act. Though it is stated that the application filed by the Investigating Agency under section 173(8) of Cr.P.C. is pending consideration of the Trial Court, yet, having regard to the material collected in the case, I do not find that the custody of the petitioners is required to be extended further for the said purpose. The only contention urged by learned SPP-I in the objection statement opposing release of the petitioners on bail is that 7 of the accused were found positive for COVID-19 and at present 67 positive cases are detected in Ward No.135. These grounds in my view cannot be a factor to deny bail to the petitioners, if they are otherwise entitled thereto.

7. Undeniably, accused Nos.1, 3 to 126 were arrested on 20.04.2020 and accused No.2 was arrested on 27.04.2020. The compulsory period of quarantine is already expired. It is not the case of the prosecution that treatment to the petitioners is being continued. Under the said circumstances, I do not find any substance in the objection raised by the prosecution that on account of 67 positive cases detected in Ward No.135, petitioners are not entitled to be released on bail.

8. That apart, a perusal of the charge sheet papers reveal that the prosecution has rested its case on the statements of the medical officers attached to the BBMP namely CWs.2, 3 and 4 and an Asha Worker CW.5. The other witnesses cited in the charge sheet are police witnesses and not a single person from general public has been cited as a witness to the alleged occurrence. The statement of the medical officers of BBMP namely CWs.2, 3 and 4 indicate that none of the police personnel were either attacked or assaulted by the mob on the 10th Cross, Arafathnagar in the presence of CW-2 to CW-5. Their statements go to show that when these witnesses had been to 10th Cross, Arafathnagar along with police at about 6.50 p.m. for the purpose of sending 58 residents of 10th Cross, Arafathnagar for quarantine, about 50 to 60 members of the public obstructed them, saying that the suspected persons should be examined at the spot and if the medical officers decide to take them to any other place, they should also take the said 50-60 persons to that place. This statement may amount to unlawful obstruction caused by the mob consisting of 50 to 60 persons from discharging the official duties by CWs.2 to 4, but these witnesses have nowhere stated in their statements that during the occurrence, either the said mob consisting of 50 to 60 persons or any other members of the unlawful assembly pelted stones at the police or assaulted them. On the other hand, the statement of these witnesses go to show that on account of the obstruction caused by 50 to 60 members of unlawful assembly at the 10th Cross, Arafathnagar, CWs.2 to 4 were taken to the check post. These witnesses have unequivocally stated in their statements that after reaching the check post, they came to know from the police that a mob of 100 to 120 persons had pelted stones on them and had damaged the chairs and tables kept in the check- post and obstructed the police from discharging their duties. These statements therefore are hear-say. CW.5/Asha worker has also given an identical statement. As a result, the prosecution is left with only the statement of the police witnesses. Though these police witnesses have given stereotyped statements stating that members of the unlawful assembly pelted stones on them and also physically assaulted them causing injuries, reading of the wound certificates reveal that the injured police personnel were treated in private hospital and it is noticed that except in two cases, all other persons had sustained contusions. A perusal of the property form produced along with the charge sheet indicates that in respect of the alleged incident, two broken plastic chairs and two clubs and a stone were seized from the spot of occurrence on 20.04.2020 which goes against the very case of the prosecution that the entire mob was armed with deadly weapons and had assaulted number of police personnel with deadly weapons causing grievous injuries.

9. Eventhough learned SPP-I has strongly opposed the bail contending that identification of the accused is required to be done, but the circumstances of the case indicate that the petitioners were in judicial custody ever since date of their arrest and no steps appear to have been taken by the Investigating Agency to identify the petitioners. It is not known as to how the charge sheet could have been laid against accused persons without the accused being identified. Needless to say that in a charge under section 143 of IPC and allied offences, identity and participation of each accused is required to be fixed with reasonable certainty. In the present case, a perusal of the case records go to show that without ascertaining the identity of the accused, petitioners are sent up for trial. In any case, having regard to the overall nature of the case and the character of the evidence collected by the prosecution, in my view, prosecution has to go a long way to sustain the charges against the petitioners. Eventhough charge under section 307 of IPC is invoked, I do not find any prima facie material in support of the said charge. There is also no material to show extensive damage to the public property as sought to be projected by the prosecution. Therefore, considering all these facts and circumstances, in my view, it would be travesty of justice to extend the custody of the petitioners solely by way of punishment. It is not the case of the respondent that in the event of release of the petitioners, they are likely to flee from justice. The only apprehension expressed by the respondent is that, in the event of release of the petitioners, they are likely to spread the Virus. This cannot be a ground to deny bail to the petitioner as adequate safeguards are already in place by way of precautionary measures to prevent spread of the pandemic and the petitioners could be put on terms to abide by the guidelines or advisories issued by the State Organs and respective authorities. Therefore, taking into consideration all the aspects of the case, I am of the view that extending the custody of the petitioners in the instant case would be unjust. No compelling circumstances are made out by the prosecution to deny bail to the petitioners. For the reasons discussed above, petitioners deserve to be admitted to bail, subject to conditions. Hence, the following:

ORDER

Petition is allowed.

a) Petitioners are directed to be enlarged on bail on furnishing bond in a su

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m of Rs.1,00,000/- (Rupees One Lakh only) each with two sureties each for the likesum to the satisfaction of the jurisdictional court. b) They shall appear before the court as and when required, unless exempted by specific order in that regard. c) They shall not threaten or allure the prosecution witnesses in whatsoever manner. d) They shall not get involved in similar offences. e) After execution of the bonds by the respective petitioners and their sureties, before their physical release, petitioners shall be subjected to medical examination and if any of the petitioners are found with symptoms of COVID-19, they shall be dealt with as per the guidelines and advisories issued by the Government of India, Ministry of Home Affairs and Government of Karnataka. f) In the event the petitioners disregard or violate any of the directions or guidelines issued by the Department of Health, Government of Karnataka or any of its officers or functionaries relating to COVID-19, and/or violate any of the conditions of this order, respondent is at liberty to seek for cancellation of the bail of such petitioners/accused by making necessary application to the trial Court. g) Petitioners shall not leave the territorial limits of the Trial Court during the pendency of the trial without prior permission of the Trial Court.
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