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Crl.Misc. No. 12665/2022
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH 70)
Present:
Sri. Rajesh Karnam K,B.Sc, LLB.,LL.M.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 16th day of January, 2023
Crl.Misc.No.12665/2022
PETITIONER
:
Keshva @ Spark
S/o Bettiaiah
aged 23 years,
# 4th Cross, Sannakki byalu,
Vrshabavathi Nagar
Bangalore560079.
(By Sri.S.V., Advocate)
RESPONDENT:
Vs
State of Karnataka
By Kamakshipalya P.S.,
Bengaluru.
(By Public Prosecutor)
ORDER ON BAIL PETITION FILED
U/SEC. 439 OF CR.P.C.
This bail application is filed by the accused No.4
seeking regular bail as he is in J.C in Crime No.194/2021
of Kamakshipalya Police station registered for the offence
punishable under sec. 143, 147, 148, 341, 323, 324, 307
and 302 r/w 149 of IPC
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2.
Brief facts of the case that CW.1 and deceased
went to consume alcohol, accused No.1 noticed and
informed accused No.5, who in turn directed to bring the
deceased infront of accused No.5 there arose a scuffle and
in the same deceased and CW.1 were assaulted kicked all
over the body and with plastic chair. In the incident victim
suffered fatal injuries while treatment is succumbed.
3.
Petitioners submits he has been made as who
accused on the statement of the other accused persons.
This petitioner is not consent to the alleged offence are the
persons involved therein. The petitioners has been named
as accused based on the evidence of CW.11 to 16 statement
given before police and therefore as he is in JC seeks
anticipatory bail.
4.
The petitioner pleads on 18/07/2021 at about
5.00 p.m in Vidhya Shree wine Vrshabavathi Nagar,
Kamakshi Palaya, just away from 2 Kms of Kamashkipalya
Police station the alleged incident happen.
The deceased
were shifted to hospital by one Raghu and Narasimha at
about 8.15 p.m who are CW.6 and 5. Victim was 1 st treated
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at
Sri.
Lakshmi
Multi
intimation is given to
specialty
hospital
from
their
Kamashkipalya Police station the
alleged assault has taken place at about 7.15 p.m.
The
crime was registered on next day on 19/07/2021 at about
12.00 p.m there is almost 19 hours delay and there is no
explanation in the FIR as to deal in this count itself
accused is entitled for conditional bail.
5.
The petitioners has been falsely implicated, if the
present petition is kept behind bar it amounts to pre trial
judgment which conviction. The Hon’ble Supreme Court of
India in a land mark Judgment of State of Rajasthan V/s
Balchand Balia AIR 1977 page 2447 held but bail is
fundamentaly.
Infact the petitioners was voluntarily
surrender on 10/08/2021 and IO has got the accused
remanded to JC, though accused is innocent of alleged
offence. Accordingly petitioners seeks bail.
6.
Learned PP has filed objections submitting that
the accused cannot be release on bail since he his involved
in heinous offence though charge sheet is filed and
SC.No.555/2022 being registered on pending on the board
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of this court without disclosing the same filing of present
bail application is not bonafide one.
citation
2017(2)
Crimes
56(SC)
Further relied on
and
also
another
Crl.P.No.1515/2018 of Hon’ble High Court of Karnataka
wherein it has been observed as follows;
2017 (2) Crimes 56 (SC) Supreme Court of
India (a) Code of Criminal Procedure,1973
Section 439Subsequent application for bail
change of circumstances Filing of charge
sheet is not change of circumstance. Does not
lessen allegations made by the prosecution
Trial Court oblivious of pendency of SLP
against rejection of second bail application
Principle of innocence of accused till he is
found guilty cannot be sole consideration for
granting bailThere has to be application of
mind (Paras 13, 14, 15)
Important points
Filing of charge sheet is not change of
circumstance for granting bail.
The
first
application
filed
by
the
petitioner was rejected.
I am of the clear view that the petitioner
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is not entitled to invoke parity to maintain the
second application
The
charge
sheet
provided
changed
circumstance and a fresh ground for the
petitioner to maintain the second application
is also liable to be rejected.
7. Heard the arguments of both sides and perused the
available materials on records.
8. The points that arise for my consideration are as
under:
i.
Whether petitioner is entitled for
bail under Sec.439 of Cr.P.C.?
ii.
What order?
9. My finding on the above points are as follows:
Point No.1:
Point No.2:
In the affirmative
As per final order for the
following;
REASONS
10.
The petitioner pleads on 18/07/2021 at about
5.00 p.m in Vidhya Shree wine Vrshabavathi Nagar,
Kamakshi Palaya, just away from 2 Kms of Kamashkipalya
Police station the alleged incident happen.
The deceased
were shifted to hospital by one Raghu and Narasimha at
about 8.15 p.m who are CW.6 and 5. Victim was 1 st treated
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Crl.Misc. No. 12665/2022
at
Sri.
Lakshmi
Multi
intimation is given to
specialty
hospital
from
their
Kamashkipalya Police station the
alleged assault has taken place at about 7.15 p.m.
The
crime was registered on next day on 19/07/2021 at about
12.00 p.m there is almost 19 hours delay and there is no
explanation in the FIR as to deal in this count itself
accused is entitled for conditional bail.
11.
Learned counsel for the accused submits there
is no any overtact done by the accused No.4 he has been
falsely implicated this accused believing the other accused
person had voluntarily surrender before court infact the
present accused is not responsible for the incident injuries
suffered by the victim are not due to the fault of this
accused.
As such while considering the entire materials
placed on record may be granted conditional bail. Infact the
present accused bail application is though dismissed as it is
constitutional right on the ground of parity and interest of
justice bail application is to be allowed.
12.
cannot
Learned PP submits that the accused No.4
be
granted
conditional
bail
infacat
material
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Crl.Misc. No. 12665/2022
witnesses have specifically given evidence under Section
164 of Cr.P.C the jurisdictional magistrate has recorded
statement of the witnesses.
There is no any changed
circumstance accordingly seeks dismissal of the application.
13. Learned counsel for the accused No.4 submits this
accused is innocent of alleged offence only on the oral say
after prosecution witness this accused is falsely implicated.
Infact the medical record discloses even the victim has
suffered injury not due to the assault made by the accused
No.4 but there are specific allegation against other accused
persons therefore accused No.4 to be release on conditional
bail. Accordingly answer the point in affirmative.
11. Point No.2:
By considering the above over all
reasons this court proceed to pass the following;
ORDER
Bail petition filed under Sec. 439 of Cr.P.C. by
the accused No.4 is allowed.
Accused No.4 is ordered to be released on
regular bail in Cr. No.194/2021CC No.296762021 on
executing his personal bond for Rs.50,000/, with one
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surety for the likesum and cash surety of Rs.10,000/
on the following conditions.
1. The accused No.4 shall not tamper with the
prosecution witnesses either directly or indirectly in
any manner.
2.
He shall appear before this court regularly
3.
He shall not abscond from the residence
and he should furnish the address proof to the
concerned police.
4.
He shall not involve in any kind of offence
5.
He shall not leave the jurisdiction without
prior permission of jurisdictional court.
6.
He shall cooperate for speedy disposal of
the case.
If any of the above conditions violates the IO is
at liberty to move for cancellation of bail.
He is ordered to be released on bail if his
custody does not required in any other case.
(Dictated to the Stenographer on computer, script corrected,
signed and pronounced by me in open court on this the 16 th day
of January, 2023)
(Rajesh Karnam K)
LXIX Addl.C.C. & Sessions Judge (CCH70)
Bengaluru.