Sheikh Mohammad Shafi vs State Of Karnataka

V Srishananda, J

Heard Sri. Leelesh Krishna, learned counsel for the petitioner and Sri. V. S. Vinayaka, learned High Court Government Pleader for the respondent-State.

Present petition is filed under Section 439 of Cr.P.C.

The brief facts of the case are as under:

A complaint came to be filed by Smt. Sumathi Naik with Moodabidre Police Station on 12.08.2021 which was registered in Crime No.255/2021 for the offences punishable under Sections 395 and 450 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for short).

Gist of the complaint averments reveals that on 12.08.2021 at about 8.30 p.m., when the complainant was watching the TV, two persons masked their faces, illegally entered into the house of the complainant and put the complainant under the fear by showing deadly weapons and snatched the mobile phone and a gold chain.

The complainant raised alarm and the persons who had snatched the aforesaid articles ran away and disappeared in the dark. After registering the case against unknown persons in Crime No.255/2021, police conducted the detailed investigation and was able to apprehend the petitioner and two more accused persons. The petitioner was arrested on 15.12.2021 and based on the voluntary statement, a gold chain is recovered. After thorough investigation, charge sheet is also filed.

The attempt made by the petitioner to obtain an order of grant of bail was turned down by the III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru by order dated 28.07.2022 in S.C. No.66/2022. Thereafter, the petitioner is before this Court.

Sri. Leelesh Krishna, learned counsel for the petitioner reiterating the grounds urged in the bail petition vehemently contended that the petitioner is handicapped person, his left hand is completely amputed and right leg is amputed below the knee level and therefore, he could not have been the person who entered the house of the complainant on the alleged date of incident and robbed the aforesaid articles. At the most, petitioner would be held liable for the offence of receiver of stolen property and sought for grant of bail.

Per contra, learned High Court Government Pleader opposes for grant of bail stating that recovery of the gold chain from the custody of the petitioner and not offering the proper explanation with regard to the possession of the gold chain which was robbed from the house of the complainant establishes nexus between the petitioner and the incident and sought for rejection of the bail.

In the light of the rival contentions, this Court perused the materials on record meticulously.

On such perusal, it is seen that the present petitioner is physically challenged person and the same is not in dispute.

Whether at all, the petitioner was also a party to the alleged robbery or not cannot be decided by this Court at this stage by holding a mini trial as the same may prejudice the case of the parties during the trial in one way or the other.

However, materials on record also disclose that there is a recovery of gold chain from the custody of the petitioner which was identified by the complainant. How the present petitioner came into the possession of the gold chain is a matter that has to be adjudicated by the Court after the full fledged trial.

Suffice to say that the accused is in custody from 15.12.2021 and in the absence of any criminal antecedents and also taking note of the fact that the charge sheet is filed, continuation of the present petitioner in the judicial custody is no longer warranted.

Further, co-accused persons have also been granted bail. Hence, this Court passes the following:

ORDER

The Criminal Petition is allowed.

Petitioner-accused shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the like-sum to the satisfaction of the trial Court;

Petitioner shall attend the Court regularly;

Petitioner shall not tamper with the prosecution witnesses directly/indirectly;

Petitioner shall not leave the jurisdiction of Mangaluru District without prior permission;

If any of the above conditions are violated, the prosecution is at liberty to seek cancellation of this bail order.

Ordered accordingly.