Baddi Durugesh vs State of Karnataka

A.N. Venugopala Gowda, J.—This petition is by accused No. 5 in Crime No.81/2016 on the file of Kotlur Police Station, Ballari District, for grant of anticipatory bail.

The complainant - Buggalli Karibasappa, a contractor, filed a complaint on 01.06.2016, stating that on 31.05.2016, the Government having proposed to put up a bore well near the public school for the public purpose through the Town Panchayat, tit about 1.00 p.m. the rigging of the bore well started and at about 4.00 p.m. the work was finished and at that time, accused No.1 and the other accused persons came to him and asked him as to why a bore well was put up in their land. Loiter, the accused with the common object of picking up quarrel, abused him with regard to the drilling of bore well and by forming an unlawful assembly and by holding deadly weapons assaulted him and others and there was an attempt to commit his murder. A case in crime No.81/2016 was registered for the offences under Sections 143, 147, 148, 324, 504, 506 and 307 r/w. Section 149 of IPC. The investigation having been taken up, the petitioner and other accused filed Criminal Misc. Nos. 5205/2016 and 5206/2016 in the Court of the III Addl. District and Sessions Judge, Ballari, sitting at Hospete. The said petition having been rejected by an order dated 24.06.2016, this petition was filed.

Shri. K.L. Patil, learned advocate, contended that the petitioner is a Government employee and he is a physically challenged person and is not at all involved in the alleged incident and due to family rivalry between the, complainant party and the accused persons, the petitioner has been falsely implicated in the case. Learned advocate submitted that because, of 60% disability to both lower limbs, the petitioner is unable to move from one place to another place, without the help and therefore, the allegation made in the petition being false and there being no overt act of whatsoever nature alleged against the petitioner, the petition may be allowed and anticipatory bail granted.

Shri. Praveen K. Uppar, learned HCGP, on the other hand, by referring to the statement of objections filed, submitted that the Investigating Officer has recorded the statements of the injured witnesses and other independent eye witnesses and as per the statements recorded, on the date of incident, all the accused formed themselves into an unlawful assembly and armed with deadly weapons came to the house of the complainant and assaulted the complainant and others. He submitted that there is material with regard to participation of the petitioner in the matter of commission of the crime as was stated by the complainant and since the matter is still under investigation and as the Investigating Officer has to collect some other materials, if the petitioner is released on bail, he may tamper the prosecution witnesses and may abscond and delay the course of investigation. Learned advocate further submitted that the offence made out against the petitioner and others is punishable with imprisonment for ten years and more and hence the petition may be dismissed. Perused the petition and the relevant materials and considered the rival submissions.

At this stage, the Court is concerned about the eligibility or otherwise relating to grant of anticipatory bail to the petitioner and hence, there is no need to go into all the factual details and arrive at a finding one way or the other, which will effect the ultimate investigation and/or trial of the case.

It is not in dispute that the petitioner is a physically challenged person having impairment of 60% in relation to his both lower limbs. The petitioner is a Government employee and is working in Jagalur Taluk of Davangere District. The photograph of the petitioner produced along with the memo filed on 18.07.2016 by Sri. K.L. Patil, shows that the petitioner cannot move independently and has to use crutches as support to his both upper limbs to move. It is unlikely that with such physical disability, the petitioner was a member of an unlawful assembly, which committed the alleged crime on 31.05.2016.

While considering the claim of pre-arrest bail, the following factors have to be kept in view.

i. The nature of gravity of the accusation.

ii. The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction of the court in respect of any cognisable offence.

iii. The possibility of the applicant to lice from justice and for where the accusation has been made with the object of injuring or humiliating the applicant for having him so arrested.

Considering the allegations in the FIR and other details, the petitioner''s physical condition and his employment at Jagalur Taluk of Davangere District, in my view, the petitioner has made out a case for grant of anticipatory bail.

The apprehensions of the prosecution can be taken care of by imposing conditions, keeping in view sub-section (2) of Section 438 Cr.P.C.

In view of the foregoing, the petition is allowed and the petitioner is granted anticipatory bail in the case pending on the basis of the FIR in Crime No.81/2016 registered at Kottur Police, Ballari, under Sections 143, 147, 148, 324, 504, 506 307 r/w. Section 49 of IPC. The respondent is directed that in the event of arrest of the petitioner, he be released on bail on his executing a personal bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with one surety for the like sum. That apart, the petitioner shall comply with the following conditions:

i. Shall extend co-operation with the respondent-police for investigation of the crime and he shall mark his attendance by appearing before the respondent-police on every second Saturday between 9.30 a.m. and 11.30 a.m. till filing of final report by the respondent-police.

ii. Shall not indulge in tampering prosecution witnesses and evidence in any manner.

iii. Shall not indulge in committing any crime.

iv. Though anticipatory bail granted will normally be in force till the conclusion of the trial, but in order to ensure the presence of the petitioner at the time of trial, it is just and proper to direct him to apply for regular bail before die concerned Court within one month from the date of filing of charge-sheet and this anticipatory bail will be in force till the consideration of the said bail application by the concerned Court.

In the event of petitioner disobeying any one of the above conditions, the prosecution is at liberty to move for cancellation of bail.