In a significant judicial order passed on April 5, 2024, the LXVII Additional City Civil & Sessions Judge, Bengaluru City (CCH.No.68), Sri Kashim Churikhan, B.A., LL.M., allowed the regular bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous Petition No. 3024/2024. The court enlarged Arshad Pasha @ Harshad (Accused No. 1) on regular bail in C.C.No.31522/2023 (Crime No. 67/2023) registered by the J.J. Nagar Police Station for offences punishable under Section 397 (robbery or dacoity, with attempt to cause death or grievous hurt) read with Section 34 of the Indian Penal Code (IPC), pending on the file of the XLVI Additional Chief Metropolitan Magistrate (A.C.M.M.), Bengaluru.
Case Background and Prosecution Allegations
The criminal law was set into motion following a report lodged by the informant at the J.J. Nagar Police Station. According to the prosecution, on May 7, 2023, at around 2:00 AM (midnight), while the informant was using his mobile phone in front of his house, Harshad (Accused No. 1) and another individual approached him. Harshad asked for the informant’s mobile phone under the pretext of making an urgent call.
Upon obtaining the phone, Harshad walked into a nearby lane and instructed the informant to follow him. In the lane, the co-accused held the informant tightly while Harshad forcefully snatched his silver bracelet, a finger ring, and a Vivo V-25 mobile phone valued at approximately Rs. 35,000/- at the point of a dagger. The accused persons threatened to kill him if he disclosed the incident to anyone.
During the course of the investigation, the J.J. Nagar Police arrested the petitioner, who was subsequently remanded to judicial custody. The police completed the investigation and submitted a charge-sheet arraying the petitioner as Accused No. 1.
The details of the petitioner as per court records are:
- Arshad Pasha @ Harshad (Accused No. 1): Aged 23 years, son of late Altaf Pasha, residing at No. 62, 11th Cross, Hosahalli Main, Arfathnagar, Old Guddadahalli, Bengaluru City.
Arguments Advanced on Behalf of the Petitioner
Appearing on behalf of the applicant, learned advocate Sri E.N. submitted the following grounds seeking regular bail under Section 439 Cr.P.C.:
- Innocence and False Implication: The petitioner maintained that he was entirely innocent of the alleged crime and had a valid defence.
- Unexplained Delay: Attention was drawn to an inordinate delay of 5 days in lodging the FIR.
- Parity and Re-arrest Background: It was submitted that the petitioner was previously enlarged on bail in this case, but due to an inadvertent absence on a single hearing date before the trial court, a Non-Bailable Warrant (NBW) was issued and executed, leading to his re-arrest and remand.
- Ground of Parity: Accused No. 2 had already been granted bail by the same court.
- Non-Capital Offence and Roots in Society: The alleged offence under Section 397 IPC is not punishable with death or life imprisonment. The petitioner belongs to a respectable family, resides permanently at the cause title address, and poses no flight risk.
Prosecution Objections
The Public Prosecutor strongly opposed the bail petition, filing detailed objections:
- Prima Facie Material: The prosecution submitted that there was strong prima facie evidence showing that the petitioner committed armed robbery using a dagger.
- Habitual Offender Allegations: It was contended that multiple criminal cases were pending against the petitioner at the J.J. Nagar Police Station, demonstrating that he is a habitual offender involved in mobile phone thefts.
- Risk of Absconding and Witness Tampering: The prosecution expressed serious apprehension that if released on bail, the petitioner would flee from justice, threaten witnesses, or hamper the trial.
Judicial Analysis and Detailed Legal Reasoning
The Sessions Court evaluated the charge-sheet materials, case history, and rival submissions to answer Point No. 1: whether the petitioner had made out sufficient grounds for bail.
1. Re-arrest Context and Parity
Judge Kashim Churikhan noted the submission that the petitioner’s re-arrest stemmed from his absence on a single trial date, which resulted in the execution of an NBW. The court highlighted that Accused No. 2 was already out on bail granted by the court. Standing on the same factual footing regarding the main allegations, the petitioner was held entitled to bail on the principle of parity.
2. Status of Investigation and Custodial Interrogation
The court observed that the charge-sheet had already been submitted and the Investigating Officer did not seek further custodial interrogation. Continued incarceration until the conclusion of the trial would serve no constructive judicial purpose.
3. Evaluation of Trial Proof
The court emphasized that the allegations—whether the petitioner robbed the informant at knife point—must be established during a full-fledged trial through the testimony of prosecution witnesses.
4. Balancing Objections with Conditions
Holding that the prosecution’s concerns regarding trial attendance and witness protection could be adequately addressed by imposing strict conditions, the court resolved Point No. 1 in the affirmative.
It remains a settled principle of criminal jurisprudence that an order deciding a bail application is procedural and does not constitute an expression on the ultimate guilt or innocence of the accused, which remains subject to trial.
Final Order and Imposed Conditions
Answering Point No. 1 in the affirmative, LXVII Additional City Civil & Sessions Judge Sri Kashim Churikhan allowed the petition filed under Section 439 Cr.P.C. and passed the following order:
The bail petition filed by the petitioner under Section 439 Cr.P.C. is hereby allowed, subject to the following conditions:
- The petitioner is ordered to be released on bail in C.C.No.31522/2023 (Crime No. 67/2023 of J.J. Nagar Police Station) on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) along with one surety for the likesum.
- He shall appear before the trial court on all hearing dates.
- He shall not tamper with prosecution witnesses.
- He shall not indulge in committing any offences.