JOSEPH JOHNSON N. MAITHKURI versus SUBRAHMANYA & ANOTHER on 9 September 2022

1. Feeling aggrieved and dissatisfied with the impugnedjudgment(s) and order(s) dated 10.06.2021 & 08.11.2021 passed by theHigh Court of Karnataka at Dharwad Bench in Criminal Petition Nos.101007/2021 & 101621/2021 respectively, by which the High Court hasallowed the said criminal petitions preferred by the accused Subrahmanyaand Rajesh (respondent No. 1 in the respective appeals) and has directed

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Ato release the accused - Subrahmanya and Rajesh on bail in connectionwith Case Crime No. 157/2019 of Dharwad Rural Police Station for theoffences punishable under Sections 120(B), 302, 201 read with Section34 of the Indian Penal Code and Section 27(3) of the Arms Act, 1959,the original complainant has preferred the present appeals.B2. Learned counsel appearing on behalf of the appellant –complainant has vehemently submitted that while directing the accused- respondent No. 1 in the respective appeals to be released on bail, theHigh Court has not at all considered the gravity of the offences. It issubmitted that the High Court has not at all considered the fact that inthe present case that there are two eye-witnesses and respondent No. 1C– accused has been identified.

2.1 It is submitted by learned counsel appearing on behalf of theappellant that in case of co-accused, namely, Umesh NagappaURF Sangappa, this Court vide judgment and order dated06.01.2022 in Criminal Appeal No. 39/2022 has set aside theDsimilar order passed by the High Court releasing the said co-accused on bail and has consequently cancelled the bail order.

2.2 Learned counsel appearing on behalf of the State hassupported the appellant.

3. We have heard learned counsel appearing on behalf of theEappellant as well as the State. Though served, none has appeared onbehalf of the accused - respondent No. 1 in the respective appeals. Wehave perused the impugned judgment(s) and order(s) passed by the HighCourt releasing the accused on bail. Even liberty is reserved to the Stateto move for cancellation of bail in the event of this Court cancelling theFbail of accused No. 4 - Umesh Nagappa URF Sangappa.

4. At the outset, it is required to be noted that in the case of co-accused, namely, Umesh Nagappa URF Sangappa, who was alsoreleased on bail by the High Court, this Court vide judgment and order inCriminal Appeal No. 39/2022 has set aside the order passed by the HighCourt and has consequently cancelled the bail order in favour of the co-Gaccused. The grounds on which the said co-accused was released onbail and the grounds on which the present respondent No. 1 –Subrahmanya is released on bail are same. In paragraph 7, the HighCourt has observed as under: -

“7. As per the charge-sheet, CWs. 18 and 19 are eye-witnesses to the incident. CW-19 who is running tea shop nearthe spot has identified accused Nos. 1,2 and 4 in Test IdentificationParade held on 31.10.2019. The police took accused Nos. 1, 2and 4 on 29.09.2019 to different places like Dandeli, Haliyal andDharwad and taken their photographs. Therefore, the photographsof accused Nos. 1,2 and 4 were available with the police andthere are every chances of the police showing them to thewitnesses namely CW-19. CW-18 is another eyewitness, who isthe driver of the vehicle of the deceased, who has also identifiedaccused Nos. 1,2 and 4 in the Test Identification Parade and thereare also chances of the police showing the photographs of theaccused to CW-18 prior to Test Identification Parade. Even if thepresence of the petitioner/accused No.5 is taken into consideration,there is no overt act alleged against him. He was sitting on bikeand the overt act alleged is against accused No.1, who fired fromthe pistol to the deceased and went away on the motorcycle alongwith the accused Nos. 2 and 4. Therefore, there is no specificovert act alleged against the petitioner/accused No.4”

That thereafter this Court has set aside the order passed by theHigh Court by observing in paragraphs 6 to 8 as under:

“6. By observing the above, virtually the High Court hasacquitted the accused. The observations made by the High Courtin para 7 are on surmises and conjectures and the High Court hasobserved that there might have been the chances of the witnessesshowing them the accused before the T.I. Parade. The factremains that the accused have been identified in a T.I. Parade byCWs. 18 & 19, who are eyewitnesses to the incident.

7. The High Court has not at all considered the gravity ofthe offence while releasing the respondent No.1-accused on bail.Therefore, the judgment and order passed by the High Courtreleasing the Respondent No.1 on bail is unsustainable anddeserves to be quashed and set aside.

8. In view of the above and for the reasons stated above,the present Appeal succeeds. The impugned order passed by theHigh Court in releasing the accused on bail in connection withCrime No. 157/2019 of Dharwad Rural Police Station is herebyquashed and set aside. The Respondent No.1 now to surrender AB

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Abefore the competent authority/appropriate jail authority within aperiod of one week from today.

5. In view of the above and for the reasons stated in judgmentand order dated 06.01.2022 passed in Criminal Appeal No. 39/2022, theimpugned judgment(s) and order(s) passed by the High Court releasingBthe accused – Subrahmanya and Rajesh, respondent No. 1 herein in therespective appeals on bail also deserve to be quashed and set aside. Atthis stage, it is required to be noted that while releasing the accusedRajesh on bail the High Court in the impugned judgment and order hasobserved that in case this Court cancels the bail granted in favour ofaccused no. 4 – Umesh Nagappa URF Sangappa it would be open forCthe State to move an appropriate application for cancellation of the bail.Therefore, once the bail in favour of Umesh Nagappa URF Sangappahas been cancelled by this Court, the bail in the present case also requiresto be cancelled.

6. In view of the above and for the reasons stated above, theDpresent Appeals succeed. The impugned judgments and orders passedby the High Court releasing the accused Subrahmanya and Rajesh,respondent No. 1 in the respective appeals on bail in connection withCase Crime No. 157/2019 of Dharwad Rural Police Station for theoffences punishable under Sections 120(B), 302, 201 read with Section34 of the Indian Penal Code and Section 27(3) of the Arms Act, 1959Eare hereby quashed and set aside. Accused Subrahmanya and Rajeshare now directed to surrender before the competent authority/appropriatejail authority within a period of two weeks from today. If the accusedSubrahmanya & Rajesh do not surrender within a period of two weeksfrom today, the concerned police authority is directed to arrest theFaccused Subrahmanya and Rajesh and the learned Trial Court to issuenon-bailable warrant against them.

7. However, it is observed that the learned Trial Court to decideand dispose of the trial in accordance with law and on its own merits onthe basis of the evidence led before it and without, in any way, influencedGby any of the observations made by the High Court in the impugnedjudgment(s) and order(s) which otherwise are set aside by the presentorder.

With this, the present Appeals are allowed.

Ankit Gyan

H(Assisted by : Aarsh Choudhary, LCRA)

Appeals allowed.