9911796707
TMI Blog2018 (6) TMI 1784X X X X Extracts X X X X X X X X Extracts X X X X ..... dy is not required to be extended any further and that accused No. 7, a co-accused in the same case having been enlarged on bail by this Court in Crl. P. No. 2263/2018 dated 17.05.2018, he is also required to be extended the said benefit on the ground of parity. But both these grounds did not find favour with the learned Trial Judge and his application came to be dismissed vide order dated 30.05.2018 in Crl. Misc. No. 3821/2018. Hence, the petitioner is before this Court. 3. Heard the learned Senior Counsel Sri B.V. Acharya appearing on behalf of the petitioner alongwith Sri Usman P, Advocate and Sri M.S. Shyam Sundar, learned Special Public Prosecutor appearing on behalf of the State. Perused the charge sheet and the documents filed alongwith the petition and the objection statement filed by the learned Special Public Prosecutor. 4. The case of the prosecution is that on the night of 17.02.2018, the petitioner alongwith other accused persons had gone to Fergy Café, a Bar and Restaurant, situate in the second floor, U.B. City, within the jurisdiction of Cubbon Park Police Station, Bengaluru. At about 10.30 p.m., the petitioner and CW-2-Vidvat. L picked up a quarrel when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hocking to note that the portion extracted by the learned Sessions Judge in inverted commas, reading: "filing of the charge sheet will not amount to change of circumstances" does not find place anywhere in para 13 or any other paragraphs of the said judgment, making it evident that the learned Sessions Judge has misread and misquoted the judgment of the Hon'ble Supreme Court. 9. The facts in Virupakshagouda's case to some extent are identical to the facts of this case inasmuch as, the accused therein was taken into custody in the course of the investigation. His application for bail was rejected by the trial court and the High Court. Thereafter, second application was filed by him before the Sessions Court after the submission of the charge sheet. Even this application came to be rejected. Once again, he moved the High Court and the High Court declined to give him relief and hence he preferred a Special Leave Petition before the Hon'ble Supreme Court. The said Special Leave Petition was dismissed on 27.11.2015. The distinguishing fact is that even after the dismissal of the Special Leave Petition, a third application filed by the accused for bail was taken up by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enlarge the appellants on bail, endeavours to project same factual score should not have been allowed. It is absolute impropriety and that impropriety calls for axing of the order." (underlining supplied) 11. The question whether the submission of the charge sheet amounts to change of circumstances so as to entertain successive applications for bail came up for consideration before the learned Single Judge of the High Court of Bombay in the case of LAXMAN IRAPPA HATTI AND ANOTHER vs. STATE OF MAHARASHTRA reported in (2004) 4 Mh.L.J. Page 415., Para 9 of the said judgment is useful for our discussion and therefore, I have extracted it hereinbelow. It reads: "The powers conferred upon the Sessions Judge or the High Court under section 439 of Criminal Procedure Code are wide enough to grant bail. There is no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by section 439 and that the only principle which was established was that the discretion should be exercised judiciously. The dominant criteria is whether there is any change of circumstance and the change should be substantial and not merely cosmetic. Under section 207 of Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents relied on by the prosecution therefore affords more material to the accused to invite the court to examine them. These materials were not available either with the accused or with the prosecution at the time of consideration of his earlier bail petition. Therefore, on account of this changed circumstance, the Court is required to consider these materials and satisfy itself that the subsequent developments and other considerations are sufficient grounds for releasing the applicant on bail. Likewise, on examination of the case, if it transpires that subsequent to the dismissal of the earlier application, a co-accused has been released on bail and the case of the applicant is similar to the accused who is bailed out, judicial uniformity and consistency require the Court to extend the principle of parity to the co-accused before it. Unfortunately, in the instant case, the learned Sessions Judge has thrown to winds these well established parameters and in disregard of the order passed in favour of the co-accused, has proceeded to reject the bail application solely relying on the observations made by this Court in Crl. P. No. 1764/2018. 13. Undeniably, the order in Crl. P. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The records reveal that the petitioner was a Graduate and was assisting his father in running his Industry. No-doubt, there is enough material to show that the father of the petitioner is a local M.L.A. But merely on that ground, it cannot be assumed that the petitioner was in a influential position and that he was making use of the power and position of his father to misdirect the investigation or to screen himself from the legal punishment. There is no presumption that the son of a M.L.A. is in a position to wield power and influence on all and sundry. Just as, a son cannot be made liable for the sins of his father, the status and position of a father cannot act as a disability against a son to seek bail. Therefore, it was not proper on the part of the learned Sessions Judge to deny bail to the petitioner on the purported ground that the petitioner was in a position to use power and influence, in case, he was released on bail. 16. The presumption of innocence is a human right. As observed by the Hon'ble Supreme Court in DR. SUBHASH KASHINATH MAHAJAN vs. THE STATE OF MAHARASHTRA AND ANOTHER, AIR 2018 SC 1498, there cannot be presumption of guilt so as to deprive a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignity, but by no stretch of imagination the acts of the petitioner could be categorized as 'heinous' falling with the definition of 307 of Indian Penal Code, so as to deny bail to the petitioner. 19. The learned Special Public Prosecutor does not dispute the fact and it is also a matter on record that except slapping on the face of the injured twice and kicking him once, no other injury has been caused by the petitioner to CW-2 or any other witnesses. According to the prosecution, CW-2 sustained the following injuries viz., 1. Facial contusion/Subconjunctival hemorrhages. 2. Fracture of both nasal bones and frontal process of left maxilla. 3. Fracture ribs at lateral angles. a. Right 4th to 9th ribs b. Left 4th to 8th ribs 20. All these injuries according to the prosecution were caused by accused Nos. 2 to 9 and not by the petitioner. It is not the case of the prosecution that any of the accused were armed with any weapons. The facts suggest that bottles and ice bucket found in the bar and restaurant were used as weapons. The circumstances indicate that there was no premeditation or any motive on the part of any of the accused persons to kill or injure CW-2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner that he used any weapon to cause injuries on CW-2. Accused No. 7 is already enlarged on bail by orders of this Court in Criminal Petition No. 2263/2018. Therefore, having regard to all these facts and circumstances, I am of the view that the petitioner requires to be admitted to bail subject to conditions. 23. Accordingly, the criminal petition is allowed. a) Petitioner-Mohammed Nalpad Haris/accused No. 1 in C.C. No. 11615/2018 (arising out of Cr. No. 22/2018) of Cubbon Park Police Station, Bengaluru City is ordered to be enlarged on bail on furnishing a bond in a sum of Rs. 2,00,000/- (Rupees Two Lakh only) with two sureties for the likesum to the satisfaction of the jurisdictional court. b) Petitioner shall appear before the court as and when required. c) Petitioner shall not tamper with the evidence and shall not threaten, induce or allure the prosecution witnesses in whatsoever manner. d) Petitioner shall not get himself involved in similar offences. e) Petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court. The observations made in this order are confined to the petition filed under section 439 Cr.P.C. and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
