KABC010233002023
IN THE COURT OF THE LXX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU(CCH-71)
Dated this the 14th day of September, 2023.
Present: Sri. Rajesh Karnam.K, B.Sc.,LL.B.,LL.M.,
LXIX Additional City Civil and Sessions
Judge, Bengaluru.
Crl.Misc.No.8454/2023
PETITIONER:
1. A.V Sharath Kumar,
S/o Vebkatachalapahy,
Aged about 28 years,
R/at NO.2, Anakanur Village,
Near Chikkaballapura Prison,
Chikkaballapura Taluk & District.
(Accused in J.C)
(Rep.by Sri.Kumarswamy A.B., Advocate).
-V/SRESPONDENTS: 1. State of Karnataka
By Banashankari Police Station,
Bengaluru City.
2. Mr. Bheemasen Ghatagi,
Police sub- Inspector,
Cubbon Park P.S
Bengaluru.
3. Hanumantharaju S.
S/o Siddalingappa,
Aged about 57 years,
R/at 462, 4th Cross, 8th Main,
Near Maramma Temple,
Harinagar, Kothanooru Main Road,
Anjanapura, Bangalore.

2
Crl.Misc.No.8454/2023
ORDER
This petition is filed by the petitioner seeking regular
bail as jurisdictional police Banashankari Police in
Spl.C.C.No.547/2023
for
the
offence
punishable
u/sec.302, 201, 343, 364, 307, 504, 506 r/w 149 of
IPC and Section 3(2)(v), (3)(1)(e) of The Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
2.

The case of the prosecution case is that the accused
No.1, 3, and 5 have lent huge money to deceased
H.Sharath Kumar so as to purchase the cars under
Airavatha Scheme of State Government but the
deceased, neither got sanctioned the cars nor
returned the said money. In that connection, the
accused No.1 with an intention to recover the
money from deceased H.Sharath Kumar kidnapped
him with the help of accused No.6 and 10 on
08.02.2022 and wrongfully confined him in the
farmhouse of accused No.3 and 8, but the deceased
H.Sharath Kumar successfully escaped from the said
farmhouse. The accused No.1 become furious and
3
Crl.Misc.No.8454/2023
again kidnapped the deceased with the help of
accused
No.5,
6
and
10
on
22.03.2022
and
wrongfully confined in the farmhouse of accused
No.3 and brutally assaulted him. Due to which
H.Sharath Kumar succumbed to the injuries on
29.03.2022. Thereafter the accused No.1 with the
help of accused No.2, 4, 7, 9, 11 and 12 shifted the
dead body of deceased and thrown in the Charmadi
Ghat with an intention to cause disappearance of
evidence.

As
such
complainant
lodged
before
jurisdictional Banashankari Police and accordingly
petitioner has come up with this petition.
3.

The grounds for petition, the petitioner contended
that the petitioner is innocent and has been lugged
in the case falsely for the reasons best known to the
respondent police. Further submits that accused
No.2, 3, 4, 5 and 7 were granted bail by imposing
the conditions by the Hon’ble high court and this
court. Hence applicant praying this court may be
pleased to grant bail to the applicant on the ground
of parity by imposing any conditions. The applicant
4
Crl.Misc.No.8454/2023
have not filed any appeal against the rejection of
bail
order
dated
15.04.2023
No.3006/2023 by this court.

in
Criminal
Misc
The respondent
Cubbon Park police registered an F.I.R No.138/2022
on the basis of unanimous complaint for the
offences U/s.506, 504, 149, 364, 307, 343 without
inserting section 302 of IPC for the reasons best
known to the them even the murder of certain
person.

This act on the part of the respondent
police is shrouded with mystery, coupled with the
absence of any complaint or enquiry from anyone of
the family members of the deceased even after the
lapse of more than ten months from the alleged
date of kidnap and anonymous letter received by
the police.

Furthermore, Sec.302 and 201 were
added on requisition of IO, No.51 of 2023.

The
jurisdiction for the police to investigate matter itself
is on a wrong notion and as such there is no clarity
with regard to the investigation carried out and the
further proceedings which took place thereafter. In
these circumstances, the entire investigation was
5
Crl.Misc.No.8454/2023
without jurisdiction and as such it cannot be held
that there was a strong prima facie case connecting
the applicant with the alleged commission of the
offence.
4.

It is submitted that the investigating offices was not
recovered the body of the deceased or body was
not found. It is alleged that the said plastic bag was
recovered from 15 metres of the area and whether
the said bag was used for carrying the dead any
semblance of evidence.

There is no forensic
analysis or DNA done and in the circumstances
there is no document or evidence to prove that the
victim is dead and that consequently Section 302
IPC is attracted in the matter.

This fact, if read
together with the non-filing of any complaint or
enquiry being made about the missing of the victim
much prior to the unearthing of the anonymous
complaint, could only lead to an inference that there
is no prima facie case to deny bail to the applicant.
In the instant case, charge sheet has already been
filed and all seizures have taken place. Receiving of
6
Crl.Misc.No.8454/2023
FSL report in respect of plastic bag or with regard to
photo and video available in the pen drive from the
laboratory does not suggest that investigation is
still pending and further report could be filed is
opposed
to
Section
167
of
the
Cr.P.C
which
emphasizes the filing of the charge sheet within the
time frame fixed and the court is precluded from
extending the remand of the accused in case a fullfledged
charge
sheet
is
not
filed.

All
the
investigation is over and the matter is pending for
trial and in which an event, the applicant is entitled
to be released on bail. The petitioner is ready and
willing to abide by the conditions that may be
imposed by this Court and to offer solvent surety to
the satisfaction of the Court for his due appearance
and accordingly sought for bail.
5.

After issuance of notice, the complainant appeared
before the Court and submits he will go along with
the prosecution through learned Spl.P.P.

7
Crl.Misc.No.8454/2023
6.

As against the petition, the learned Special Public
Prosecutor has filed objection submitting in detail
that the entire incident happened at the instance of
the accused No.1 who did planned and executed the
same with help of other accused persons.

The
victim had promised to get Cars available in
Iravatha scheme and Ambedkar Scheme to the
accused No.1, 3 and 5 the victim had obtained loan
and he was a Scheduled caste member. Subsidised
cars would be available, was the plan of the
deceased.

Infact incident being happened at the
instance of accused No.1 when the victim was
unable secure any of the cars.

The accused No.1
abducted by the victim and tortured him.
7.

The learned S PP filed objection that, the accused
No.1 did assaulted the victim by shifting him from
the Farmhouse of the accused No.3 on 08.02.2022
night he has been abducted, on 09.02.2022 he was
kept
in
Chapparadahalli
farmhouse
where
he
absconded with the help of the CW.17. The victim
had returned home. But this accused No.1 once
8
Crl.Misc.No.8454/2023
again abducted the victim on 21.03.2022 from
J.P.Nagar, Sarakki Signal. Since then the victim was
not traceable, the victim has been assaulted with
heavy rope and even plastic pipe, due to the
continuous beating, harassment and ill-treatment
by the accused No.1. The victim had succumbed.
Infact, there is destruction of evidence made by the
accused
No.1
in
assistance
of
other
accused
persons.

Infact, the video clip clearly shows that,
the victim has been continuously tortured day and
night by the accused No.1. If this piece of evidence
was able to placed before the Hon’ble court
probably non of the accused would have got by as
they have all cooperated in commission of offence.
Thus sought for rejection of petition.
8.

The learned PP had objected, if the petitioner is
released on bail, there is every possibility he may
abscond. Definitely there will be no fear of law. In
fact though the crime has been committed it has
been subtude from the public and the family
members of the victim.

Only when the video
9
Crl.Misc.No.8454/2023
circulated, through WhatsApp on social media. The
investigation got some chance to be concluded in
accordance with law.

Therefore, the piece of
evidence placed by the prosecution are all based on
circumstantial evidence, if this accused is granted
by they will definitely destroy the material placed
on record and also they may tamper with the
evidence, commit similar offences and may abscond
permanently. Thus sought for rejection of petition.
9.

Heard the arguments of both sides and perused the
records.

The
following
points
arise
for
my
for
the
consideration;
10.

1.

POINTS
Whether the petitioner is
entitled for bail under Section
439 of Cr.P.C., ?

2.

What Order?

My answers to the above points are ;
Point No.1: In the “Negative”
Point No.2:
As per final order
for the following;
REASONS
11.

POINT
NO.1
:
The
learned
counsel
petitioner submits the petitioner is innocent of the
10
Crl.Misc.No.8454/2023
alleged offences.

He has been framed in the
present case the recovery of the plastic bag, does
not establish that accused No.1, had committed the
crime. In fact this accused has been framed by the
Investigating Officer has the main accused.

The
family members of deceased had complained that,
the deceased
was missing since March 2022
however, the case of prosecution case is that the
came to about death of victim in December 2022
and this accused has been implicated.
12.

The learned counsel for the accused submits, the
deceased had availed huge some of money from
different persons. He was unable to repay the same
based on video clip and Section 65B certificate as
per Information Technology Act. This accused can
not by the held responsible. In fact those piece of
evidence needs proof.

In fact as per the inquest
mahazar the body of the deceased was not able to
be recovered.

In fact under these circumstances
other accused persons namely in Crl.A.No.854/2023
dated
11.07.2023
the
Hon’ble
High
Court
of
11
Crl.Misc.No.8454/2023
Karnataka is satisfied to grant conditional bail to the
accused No.3 and similarly other accused No.2 is
also granted by the Hon’ble High Court of Karnataka
in Crl.A.No.1112/2023 dated 23.08.2023. Therefore,
this accused also seeks conditional bail.
13.

Learned Special Public Prosecutor argues that, the
accused can not be granted by on the ground of
parity since the I.O. has taken lot of time to follow
up the present case. The prosecution was able to
collect some material to prove the prima facie case
and if accused No.1 is granted bail.

The accused
No.1, can follow up the tempering of the material
witness and prosecution may not be able to no the
tactics as offence committed by the accused is very
peculiar
and
the
material
collected
by
the
Investigating Officer is only circumstantial one.
Therefore till conclusion of the evidence of the eye
witness this accused bail application can not be
considered is the bail.

12
Crl.Misc.No.8454/2023
14.

On going through the materials on record, on
considering bail granted to other accused persons
only on the ground that the nexus of the accused
who have granted by with the alleged grounds
needs time to be proved before the court by way of
evidence.

As such to avoid inconvenience the
accused. The other accused granted by this court
on through the material on record C.D deposited in
court original Special Case 547/2023 does not
oblige this court to consider the bail application.
Accordingly,
Point
No.1
is
answered
in
the
‘Negative’.
15.

Point No.2: In view of my findings on Point No.1, I
proceed to pass the following;
ORDER
The Petition filed by the Petitioner
under Section 439 of Cr.P.C., is hereby
dismissed.

(Dictated to the stenographer, transcribed by her, transcription corrected,
signed and then pronounced in open court on this the 14 th day of September,
2023).

(Rajesh Karnam.K)
LXX Addl. City Civil and Sessions Judge
and Special Judge, Bengaluru.