Allowed

Hussainabba @ Hussain v. State of Karnataka

Karnataka HC9 Apr 2021CRL.P/5896/2020

Case brief

AI extract

What is this about?

The High Court allowed a bail petition filed by an accused in custody for over four years. Granting bail since the evidence of prosecution eye witnesses was complete, eliminating apprehension of tampering, and noting the bail proceedings were not punitive in nature.

What did the court decide?

Petitioner enlarged on bail (personal bond of Rs.1,00,000/- with one surety) for offences under IPC and Arms Act pending before the Trial Court.

Hussainabba @ Hussain Vs State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF APRIL, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

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CRIMINAL PETITION No.5896/2020

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Between :

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Hussainabba @ Hussain, S/o Abdul Rahiman, Aged about 35 years, R/at Kerebali House, Sangabetu Village, Bantwal Taluk, D.K. District - 574 219. (Now in Judicial Custody, District Prison, Mangalore) … Petitioner (By Sri Hashmath Pasha, Senior Advocate for Sri Nasim Ali, Advocate)

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And :

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State of Karnataka by: Ullal Police Station, Mangalore city - 575 020.

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(Represented by Learned State Public Prosecutor, High Court of Karnataka, Bangalore - 560 001. … Respondent (By Sri K. Nageshwarappa, Advocate)

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This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Cr. No.63/2017 (S.C. No.149/2017) of Ullal Police Station, Mangaluru City for the offences p/u/s 120B, 143, 144, 147, 148, 341, 504, 506, 302, 307, 326, 120B r/w 149 of IPC and Sections 3, 25(1)(1B), Sections 7, 25(1)(1A), Section 27(3) of Arms Act.

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This Criminal Petition coming on for orders this day, the Court, made the following:

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ORDER

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Petitioner - accused No.3 has filed the present petition seeking to be enlarged on bail in connection with his detention pursuant to the proceedings in Crime No.63/2017 which is now pending in S.C.No.149/2017 for offences

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punishable under Sections 143, 147, 148, 279, 341, 504, 506, 302, 307, 326, 149 of IPC and under Sections 3, 25, 27 of the Arms Act, on the basis of the complaint lodged by one Mohammed Zahid, who is stated to be the friend of deceased.

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The facts as made out in the complaint are that

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the complainant, deceased and two others were travelling from Hosangadi towards Mangalore and they were waylaid by a truck. It is further submitted that the complainant and the deceased sensed trouble and attempted to run away.

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There was skirmish and finally the deceased was assaulted with talwar and knife and the complainant was also assaulted. Deceased has succumbed to the injuries and died while the complainant was treated as an outpatient. In light of the said incident, complaint came to be filed, FIR was lodged, investigation is complete, charge sheet has been filed and trial is in progress.

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Petitioner submits that on previous occasions he had approached this Court in Crl.P.No. 6558/2017 disposed off on 07.12.2017 on merits. However, it is pointed out that subsequently, in Crl.P.No.5708/2019, petition came to be withdrawn with liberty to approach the trial Court after examination of eye witnesses and such liberty was granted. It is further submitted that in light of the liberty granted in Crl.P.No.5708/2019 disposed off on 04.11.2019, petitioner had approached the trial court by filing an application under Section 439 of Cr.P.C., which came to be rejected on 12.06.2020 and subsequently, has filed the present petition.

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During the course of hearing of the petition, matter was adjourned on several occasions for conclusion of evidence of P.Ws. 1, 2, 4 and 5. Learned HCGP submits that the evidence of aforesaid witnesses is complete. What remains is the evidence of formal witnesses. It is also stated that about 20 witnesses have led in evidence as on date.

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Learned Senior counsel appearing for the petitioner submits that the petitioner is in custody since 28.02.2017, which is more than 4 years since the date of his incarceration. It is further submitted that continued detention of the petitioner at this stage may not be relevant as the present proceedings cannot be construed to be punitive in nature. It is further submitted that as the evidence of eye witnesses is complete, apprehension of tampering witnesses or derailing the case of prosecution is a non-existent apprehension.

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Without adverting to the merits while noting that this Court had granted liberty to the petitioner to move

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afresh after conclusion of evidence as per the order dated 04.11.2019 passed in Crl.P.No.5708/2019, matter is taken up for consideration. It is also to be noticed that the order passed in Crl.P.No.5708/2019 is subsequent to the order passed in Crl.P.No.6558/2017 wherein the petition filed seeking to be enlarged on bail was rejected on its merits. On a specific query, learned HCGP submits that the evidence of the eye witnesses and primary witnesses i.e., P.Ws. 1, 2, 4 and 5 is completed.

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Taking note of the observations made in

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Crl.P.No.5708/2019; taking note that the evidence of the eye witnesses - P.Ws. 1, 2, 4 and 5 is complete in all respects and that evidence of about 20 witnesses is complete as asserted by the learned Senior counsel appearing for the petitioner, which remains uncontroverted; noticing that the apprehension of tampering with the witnesses has paled into insignificance in light of the completion of evidence of the primary witnesses of the prosecution; noticing that the petitioner has been in custody

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since 28.02.2017 and observing that the present proceedings relating to be enlarged on bail cannot be construed to be punitive in nature, petition is to be allowed while imposing appropriate conditions.

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Accordingly, the bail petition filed by the petitioner under Sec. 439 of Cr.P.C. is allowed and the petitioner is enlarged on bail in Crime No.63/2017 which is now pending in S.C.No.149/2017 for offences punishable under Sections 143, 147, 148, 279, 341, 504, 506, 302, 307, 326, 149 of IPC and under Sections 3, 25, 27 of the Arms Act, subject to the following conditions:

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(i) The petitioner shall execute a personal bond of Rs.1,00,000/- (Rupees one Lakh only) with one surety for the likesum to the satisfaction of the concerned Court.

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(ii) The petitioner shall fully co-operate for the expeditious disposal of the trial.

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(iii) The petitioner shall not tamper with evidence, influence in any way any witness.

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(iv) In the event of change of address, the petitioner to inform the same to the concerned SHO.

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(v) Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail.

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Any observation made herein shall not be taken as an

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expression of opinion on the merits of the case.

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Sd/JUDGE

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VP

Hussainabba @ Hussain v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Hussainabba @ Hussain v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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