Nisar vs The State of Karnataka

Budihal R.B., J.—This is the petition filed by the petitioner - accused No. 3 u/s 439 of Cr.P.C. seeking his release on bail for the offence punishable u/s 395 of IPC registered by the respondent - police in Crime No. 161/2013.

The case of the prosecution in brief as per the averments in the complaint that on 06-07-2013 complainant had been to Kanchikere village to the house of his sister and took cash of Rs. 27,700/- from the bank and returned to his village. On 07-07-2013, he went to Davanagere and he met his friend and at about 10.45 p.m. near Vishali Bar he took an autorickshaw in order to go to bus stand. Thereafter, near R.H. Choultry, 6 persons boarded the autorickshaw and assaulted him and snatched cash of Rs. 27,700/-, nokia mobile phone, pen from his pocket and further pushed him from the auto rickshaw near BJP office and went away. On the basis of the said complaint, case has been registered for the alleged offence against the unknown persons and during investigation, Investigating Officer arraigned present petitioner as accused No. 3 along with other accused persons.

Heard the arguments of the learned counsel appearing for the petitioner - accused No. 3 and also learned High Court Government Pleader for the respondent - State.

Learned counsel for the petitioner during the course of his argument submitted that so far as the petitioner is concerned, no amount has been seized from his possession. But it is only the case of the prosecution that the present petitioner sold nokia mobile phone to one Sanaulla - CW-10 and from the possession of CW-10, mobile phone has been recovered. Counsel made the submission that accused No. 4 with the same set of allegation has been granted with bail by the lower Court. But the petition of the present petitioner has been rejected on the ground that he is not the resident of Davanagere. Counsel made the submission that in fact he is the resident of Davanagere and he is ready to abide by any of the reasonable conditions to be imposed by this Court. He made the submission that now the investigation of the case is completed and charge sheet has been filed. Hence, he can be enlarged on bail.

As against this, learned Government Pleader during the course of his argument submitted that though the amount is not seized from the possession of the present petitioner which is said to have been robbed from the complainant. But there is a material that he sold the mobile phone to CW-10 and from CW-10, the Investigating Officer has recovered the mobile phone. This goes to show about the involvement of the present petitioner also in the commission of the alleged offence. Hence, he submitted the offence alleged u/s 395 of IPC is a serious offence and petitioner is not entitled to be granted with bail.

I have perused the averments made in the bail petition, FIR, complaint and other materials, so also the order passed by the trial Court in respect of accused No. 4. Looking to the materials on record and even according to the case of the prosecution that amount has not been seized from the possession of the present petitioner which said to have been robbed from the complainant. It is the contention of the petitioner that he has been falsely implicated in the case and looking to the materials on record, firstly the case was registered against the unknown persons and it is only during the investigation, the present petitioner has been arraigned as accused No. 3. Looking to the allegations made in the complaint that 6 persons boarded the auto rickshaw and they assaulted the complainant and snatched Rs. 27,700/- and nokia mobile phone. So under the same allegations, lower Court as also granted bail to accused No. 4. But the apprehension of the prosecution, that if released on bail, present petitioner may not be available before the trial Court to proceed with the trial. For this apprehension, stringent conditions can be imposed which will safeguard the interest of the prosecution. The offence alleged is also not exclusively punishable with death or imprisonment for life. I have also discussed that the robbed amount is not been recovered from the present petitioner. By imposing reasonable conditions, petitioner may be admitted to bail.

7 Accordingly, petition is allowed. The petitioner - accused Nos. 3 is ordered to be released on bail for the offence punishable u/s 395 of IPC registered by the respondent - police in Crime No. 161/2013, subject to the following conditions:

(i) The petitioner shall execute a personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one solvent surety for the likesum to the satisfaction of the concerned Court;

(ii) The petitioner shall not directly or indirectly tamper with any of the prosecution witnesses;

(iii) The petitioner shall appear before the concerned Court regularly.