(Prayer: This Crl.P is filed U/s.439 of Cr.P.C praying to enlarge the petitioner on bail in Cr.No.58/2016 of Periyapatna P.S., Mysuru District for the offence P/U/s 395 and 397 of IPC.)
1. Since all these petitions are in respect of the same crime number and since common questions of law and facts are involved in all the cases, they are taken together to dispose of them by this common order.
2. Crl.P.No.5911/2016 is filed by accused No.4; Crl.P.No.5958/2016 is filed by accused No.1; Crl.P.No.5987/2016 is filed by accused No.9 and Crl.P.No.6326/20916 is filed by accused Nos.5, 7 and 8.
3. All the petitions are filed under Section 439 of Cr.P.C. seeking their release on bail of the alleged offences punishable under Sections 395 and 397 of IPC registered in respondent police station Crime No.58/2016.
4. Brief facts of the prosecution case as per the complainant averments are that, one Mr.Ashir.K.P. filed the complaint alleging that himself and his friend Fahaz are doing contract work in L and T Company at Bengaluru; on 7.4.2016 the complainant and his friend Fahaz were traveling from Bengaluru to their native village Koyilandi Taluk of Calicut District, Kerala State; they left Bangalore in the night about 9.00 p.m. in Maruti car bearing No.KL-11-AU-1777; after reaching Mysuru they were proceeding on Hunsur Gonikoppa road; at that time, one Innova car was overtaking the car of the complainant frequently; after passing Sagar hotel near Panchavalli village at about 1.15 a.m. the driver of the Innova Car stopped the car in front of the complainant's car; at the same time, other two cars came and surrounded complainant's car; out of 10-12 persons from the said car, 3 persons came near complainant's car and smashed the door on the driver seat and also assaulted the complainant with iron rod; they forcibly got the complainant down from the car by showing the knife and with the rod caused hurt; thereafter, they took complainant's car along with their car and fled from the said spot; they have also robbed the mobile, purse, cash, credit card and insurance card of the complainant and his friend kept in the car; after the incident, the complainant and his friend came to Sagar hotel near Panchavalli village and with the help of persons they informed the incident to the police. Thereafter, police came to the spot and complaint was filed. On the basis of the said complaint, initially case came to be registered against 10-12 unknown persons and subsequently, during investigation, these petitioners were arrayed as accused persons.
5. Heard the arguments of the learned counsel appearing for the petitioners/accused and also the learned SPP-2 appearing for the respondent-State in respect of all the four petitions.
6. Learned counsel for the petitioners during the course of arguments submitted that as per the complaint averments and the case of the prosecution, the incident has taken place during the midnight and in the complaint it is stated by the complainant that he has seen some of the assailants out of 10-12 persons through the headlight of the vehicle. During the course of investigation, Test Identification Parade was conducted before the Taluka Executive Magistrate wherein complainant and his friend were also called to participate in the proceedings. The materials collected in that regard clearly shows that neither the complainant nor his friend were able to identify any of the accused persons. Hence, the very identification of the assailants itself is not established by the prosecution. As such, since there is no supporting material, implicating the accused persons in the said case, there is no prima facie case. It is further submitted that recording of voluntary statements of some of the accused persons and recovery of the mobile phones themselves will not make out prima facie case and it is a matter of trial. Now the investigation is completed and charge sheet has been filed, as such, continuation of the petitioners-accused in custody is not at all necessary. Petitioners are ready to abide by any reasonable conditions to be imposed by the Court. Hence, it is submitted to allow the petitions and to release the petitioners-accused on bail.
7. Per-contra, Sri.K.R.Keshava Murthy, learned SPP-2 during the course of his arguments submitted that it is no doubt true in the identification parade conducted neither the complainant nor his friend have identified any of the accused persons, but only on that basis the other material of the prosecution cannot be rejected. He also drew the attention of this Court to the objection statement filed on behalf of the State and contended that earlier to this incident, another complaint was filed in Crime No.52/2016 for the offences punishable under Sections 398, 402, 399 and 511 of IPC against 7 accused persons who were traveling in car, wherein the police have intercepted and seized two cars of the accused persons and have also taken the photographs of the said 7 accused persons. The accused persons in the said photographs are the same persons who are involved in the present crime No.58/2016. In this regard he has also relied upon the diary entries regarding the previous incident pertaining to Crime No.52/2016. He has also submitted that during investigation police have recorded voluntary statements of some of the accused persons and recovery is also effected and even the call details have been obtained and they were certified by the competent authority and they were also produced as charge sheet material. As such, the amended provisions of Section 65B of the Evidence Act is also complied with. He has further submitted in paragraph No.7 of the objection statement he has mentioned in detail about the previous antecedents of some of the accused persons. More particularly, in respect of accused No.1 Harees, it is his submission that while obtaining bail, the said accused has suppressed some of the material facts before the Court and that he is involved in 2-3 cases and is a habitual offender. Even he has made an attempt to go to abroad to escape from the clutches of law. It is further submitted that even subsequent to this case, the accused persons were making preparations to commit robbery and dacoity and they were caught red-handed and taken to custody by the police. Accordingly, it is his submission that in case petitioners are released on bail, they will tamper the prosecution witnesses, as such, petitioners are not entitled to be granted with bail and submitted that bail petitions in respect of all the accused persons may be rejected.
8. I have perused the grounds urged in the respective bails petitions, objection statement filed by the respondent-State opposing the bail petitions, FIR, complaint and also the entire charge sheet material collected during investigation.
9. At the first instance the FIR was filed against 10-12 unknown persons and subsequently during the course of investigation, the present petitioners were arrayed as accused persons and they were also taken to custody by the police. As per the complaint averments and also statement of the friend of the complainant, they both have seen some of the assailants out of 10-12 persons in the headlight of the car. Subsequently, in the Test Identification Parade conducted in the presence of the Taluka Executive Magistrate to establish the identity of the accused persons involved in committing the offences, when the complainant and his friend were called to participate in the said proceedings to identify the accused persons whom they have seen on the date of the incident in the midnight through headlight of the car, the said witnesses have not at all identified any of the accused persons that they have participated in committing the alleged offences during that night. Hence, it is clear that prosecution was not able to establish the identify of any of the petitioners-accused about their complicity in committing the alleged offences. With regard to the contention of the learned SPP-2 with regard to the recovery is concerned, it is no doubt true the voluntary statements of some of the accused persons were recorded by the Investigating Officer during investigation and at the instance of such voluntary statements, mobile phones and cars were recovered by the police. But only on the basis of the said material that there is recovery of some of the articles, at this stage it cannot be said that the petitioners are not entitled to be granted with bail.
10. I have also perused the objection statement filed by the State opposing the bail petitions. It is no doubt true in paragraph No.2 of the said objection statement it is contended by the State in detail about the previous incident said to have taken place in Crime No.52/2016 wherein 7 accused persons were apprehended and their photographs have been taken. But on the basis of the said material it cannot be said that the prosecution has established the identity of the accused persons to the satisfaction of the Court and it is a matter for trial after collecting the entire materials.
11. I have also perused the materials produced by the learned SPP-2 regarding the previous antecedents of accused No.1-Harees that he has suppressed the true facts while getting bail order at the hands of this Court. If it is true, the prosecution can move the concerned Court seeking cancellation of his bail.
12. Now the investigation is completed and charge sheet has been filed. The petitioners have contended in detail in their bail petitions that they have not at all participated in the alleged offences, they are innocent and that they are ready to abide by any reasonable conditions to be imposed by the Court. Considering all these aspects of the matter and as the very identify of the accused persons itself is not established, I am of the clear opinion that petitioners have made out a case for their release on bail.
13. Accordingly, all the four petitions are allowed. The petitioners in the respective petitions are ordered to be released on bail of the alleged offences punishable under Sections 395 and 397 of IPC registered in respondent police station Crime No.58/2016, subject to the following conditions:
i. Each petitioner shall execute a personal bond for a sum of Rs.2,00,000/- and furnish two solvent sureties for the likesum to the satisfaction of the concerned Court.
ii. They shall not tamper with any of the prosecution witnesses directly or indirectly.
iii. They shall appear before the concerned Court regularly.
iv. They shall not leave the jurisdiction of the concerned Court without its prior permission.