Dismissed

Mahesh S/O Shivaji Tivade v. the State of Karnataka

Karnataka HC28 Jan 2020CRL.P/101989/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a bail petition filed under Section 439 Cr.P.C. The court held that the alleged continuity of custody and hostile witnesses in an ongoing trial did not constitute a sufficient change in circumstances to grant bail for accused persons charged with narcotics trafficking and robbery.

What did the court decide?

The criminal petition for bail under Section 439 Cr.P.C. is dismissed.

Mahesh S/O Shivaji Tivade Vs the State of Karnataka — Narcotics (NDPS) | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF JANUARY, 2020

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BEFORE

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THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

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CRIMINAL PETITION NO.101989/2019

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Between:

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Mahesh S/o. Shivaji Tivade Age: 36 years, Occ: Driver R/o. Ummalvad, Tq:Shirol Dist: Kollapur, Maharashtra.

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... Petitioner

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(By Sri. R.H. Angadi, Advocate)

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And:

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The State of Karnataka (Town Police Station, Dharwad) R/by the State Public Prosecutor, High Court of Karnataka Dharwad Bench at Dharwad.

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... Respondent

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(By Sri R. Ravindra Naik, HCGP)

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This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner who is arrayed as Accused No.3 on bail in Special N.D.P.S. C.C.No.02/2018 (Crime No.253/2017), on the file of Principal District and Sessions Judge, Dharwad for the alleged offences punishable under Sections 41(1)(d), 102 of Cr.P.C.

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Crl.P.No.101989/2019

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Sections 379, 392, 511 of IPC and Secions 20(B)(ii)(C) of Narcotic Drugs and Psychotrophic Substances Act, a case registered by Town Police Station, Dharwad, at their Crime No.253/2017, etc.

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This Criminal Petition coming on for Orders this day, through Video Conference at Kalaburagi Bench, the Court made the following:

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ORDER

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Learned counsels from both side present.

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Learned High Court Government Pleader

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furnishes a copy of the Statement of Objections to the learned counsel for petitioner.

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This petition is filed by the petitioner under

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Section 439 of the Code of Criminal Procedure, 1973 (henceforth for brevity referred to as “Cr.P.C.”), seeking regular bail in Dharwad Town Police Station Crime No.253/2017 for the offences punishable under Section 41(1)(d), 102 of Cr.P.C., Sections 379, 392, 511 of the Indian Penal Code, 1860 (henceforth for brevity referred to as “IPC”) and under Section

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Crl.P.No.101989/2019

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20(B)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985.

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It is the case of the prosecution that crime

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No.253/2017 is registered by the respondent – Police based on the complaint lodged by one Girish H. Bojannavar said to be the Police Inspector. It is alleged in the complaint that, on 11-11-2017 at about 8:00 a.m. the complainant received credible information that in a car bearing Reg.No.MH-11/H1375 some suspicious substance is being transported

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from Savadatti to Dharwad. Immediately, the complainant Police Officer passing on the said information to his superior officer and as per the direction of his superior officers forming a team comprising himself and his staff and also two panchas went near Kavalageri cross and putting a barricade on Savadatti-Dharwad road, started observing the moving vehicles. In that process, at 9:00 a.m. the car

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Crl.P.No.101989/2019

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mentioned in the information came to that place. The driver did not stop the car, despite the indication to stop by the police. However, by hitting the barricade, the car came to an automatic halt. The driver got down from the car and started to run, he was caught by the police after chasing him. In the meantime, another person following the said car upon his motorcycle could able to take over the car and flee from the scene. On interrogation of the driver of the car, who was apprehended by the police, it was disclosed that the said apprehended person joined by the rider of the motor cycle who was following the said car and others were involved in several offences of chain snatching in Dharwad. They used to park the car on one side of the place and by walking used to visit the nearby places and commit the act of chain snatching and flee from the place in their motor cycle and car. When the said car was searched, it was also

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Crl.P.No.101989/2019

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found that the driver/accused was illegally transporting 1370 grams cannabis. No clear

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explanation for carrying the said goods was given by the driver of the car.

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After registering the said complaint, the

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investigation is said to have been conducted by the complainant – Police shown to have revealed that the accused who were caught by the raiding team further revealed during the interrogation about the involvement of the present petitioner also in the commission of the crime by them. It is stated that the present petitioner was also a part of their gang who used to commit acts of robbery at different places. It is further stated that the accused were also doing an illegal trade in cannabis (ganja) at the involvement and cooperation of accused Nos.4 to 6.

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Learned counsel for the petitioner in his

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argument submitted that though this is the second

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Crl.P.No.101989/2019

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similar bail application of the petitioner for the relief under Section 439 of Cr.P.C., the alleged change in the circumstance is the fact that, the accused is still in judicial custody since about more than three years and that the trial is also going on. He further submitted that all the witnesses in the trial have turned hostile, as such, absolutely there is no evidence in favour of the prosecution. In the said circumstance, the petitioner/accused deserves to be enlarged on bail.

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Learned High Court Government Pleader has

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filed his statement of objections to the application. Apart from serving a copy of the same to the learned counsel for the petitioner, he has read over his statement of objections in its entirety before the Court now.

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Learned High Court Government Pleader further submitted that a quantity of not less than 1370 grams

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Crl.P.No.101989/2019

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of ganja has been recovered from the possession of the accused in the Car in which they were travelling. He also says that the present petitioner is an accused from the State of Maharashtra, as such, in case of his enlargement on bail, securing him for further trial would be a difficult task. He also submits that the present petitioner is a habitual offender against whom several other similar criminal cases are pending in various other Districts in the State of Karnataka.

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A perusal of the charge sheet papers would

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go to show that, the Investigating Officer claims to have recovered cut pieces of gold chain at the instance of the present petitioner. According to the prosecution as well as the charge sheet papers the present petitioner is said to have been involved in nine other similar cases of robbery for the offence punishable under Section 392 IPC at difference places.

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Crl.P.No.101989/2019

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In the said circumstance, the contention of

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the learned High Court Government Pleader that the petitioner is a habitual offender also cannot be totally ignored. Observing these aspects, this Court earlier had rejected a similar petition of the present petitioner in Criminal Petition No.100580/2018 dated 03-07-2018.

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The alleged change in the circumstance subsequent to the previous similar petition of the present petitioner is only the longevity of his alleged judicial custody. Merely, a ground of alleged continuation in judicial custody, in my view, in the circumstance of the case on hand, cannot be considered as a change in the circumstance of the case. Even though the learned counsel for the petitioner submitted that all the material witnesses in the trial in this matter have not supported the case of the prosecution and they have turned hostile to the

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Crl.P.No.101989/2019

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prosecution, but the same cannot be considered as a criteria for enlarging the petitioner on bail. Any appreciation of the evidence said to have been given by the prosecution witnesses in an on-going trial and enlarging the petitioner by treating that the witnesses have turned hostile, may amount in pre-writing a judgment in the case where the trial is still going on.

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For all these reasons, I am of the view that in the absence of any change in the circumstance, the present repetitive bail petition of the petitioner does not warrant to be allowed.

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Accordingly, the present criminal petition stands dismissed.

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JUDGE

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BMV*

Mahesh S/O Shivaji Tivade v. the State of Karnataka

Case brief

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Mahesh S/O Shivaji Tivade v. the State of Karnataka

Case brief

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