Allowed

Vasudev Bhagawan Suryavamshi Alias Vasu Alias Mechanic v. the State of Karnataka

Karnataka HC23 Jul 2024CRL.P/101997/2024

Case brief

AI extract

What is this about?

The High Court allowed a Criminal Petition seeking bail for two accused persons charged with murder and related offenses. The Court observed that the only specific evidence against them relates to stealing a motorcycle, which was in a prior dismissed case, and found their detention amounted to pre-trial punishment violating Article 21.

What did the court decide?

Petitioners enlarged on bail by furnishing bond of Rs.2,00,000/- each with two sureties, subject to conditions not to commit offences, tamper with witnesses, and appear when required.

Vasudev Bhagawan Suryavamshi Alias Vasu Alias… — Criminal Trial and Appeal | Karnataka HC (2024)

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- 1 - NC: 2024:KHC-D:10403 CRL.P No. 101997 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M.G.UMA

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CRIMINAL PETITION NO. 101997 OF 2024

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BETWEEN:

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VASUDEV BHAGAWAN SURYAVAMSHI @ VASU @ MECHANIC S/O. LATE BHAGWAN, AGED ABOUT 29 YEARS, R/O. SAKALI GRAM, YAVAL TALUK, JALAGAON DISTRICT, MAHARASHTRA - 590 001

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AMIT BADDI @ AMIT @ GOVIND S/O. LATE RAMACHANDRA, R/O. HABIB CHAWL, JANATA BAZAR, RANI CHENNAMMA CIRCLE, HUBBALLI, DHARWAD DISTRICT - 580 029.

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…PETITIONERS (BY SRI. ARUN SHYAM, SR. COUNSEL FOR SMT. DIVYA R BALEHITTAL, ADVOCATE)

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Digitally signed by SWAPNA V Location: high court of karnataka

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AND:

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THE STATE OF KARNATAKA (VIDYAGIRI POLICE STATION, DHARWAD) BY CHIEF INVESTIGATION OFFICER, SPECIAL INVESTIGATION TEAM, CID OFFICE, BENGALURU, (BY SPECIAL PUBLIC PROSECUTOR)

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…RESPONDENT

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(BY SRI. AHOK N. NAIK, SPL. P.P.)

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THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING TO DIRECT THE RELEASE OF THE PETITIONERS/ACCUSED NO.4 AND 6 IN CRIME NO.142/2015 OF VIDYAGIRI POLICE STATION

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FOR THE OFFENCES PUNISHABLE U/S 120(B), 109, 449, 302, 201 AND 35 OF IPC R/W SECTION 25(1)(A), 25(1)(B), 27(1) OF INDIAN ARMS ACT 1959 BEFORE THE COURT OF IV ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, IN S.C. NO.2/2020.

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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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The petitioners-accused Nos. 4 and 6 are before this Court seeking grant of bail under Section 439 of Cr.P.C. in Crime No.142/2015 of Vidyagiri Police Station, pending in S.C.No.2/2020 on the file of the learned IV Additional District and Sessions Judge, Dharwad, registered for the offences punishable under Sections 120(B), 109, 449, 302, 201 and 35 of the Indian Penal Code (for short 'IPC') and Section 25(1)(A), 25(1)(B), 27(1) of the Indian Arms Act, 1959 (for short 'the Arms Act'), on the basis of the first information lodged by the informant Rupadarshi Kinagi.

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Heard Sri.Arun Shyam, learned Senior Advocate for Smt. Divya Balehittal, learned counsel for the petitioners and Sri.Ashok N Naik, learned Special Public Prosecutor for the respondent -State. Perused the materials on record.

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Learned Senior Advocate for the petitioners contended that the petitioners are falsely implicated in the matter without there being any basis. Initially, the petitioners were apprehended in another case registered for the offences punishable under Section 302 of IPC, popularly known as 'Gouri Lankesh murder case' on 23.07.2018 and 11.10.2018 respectively. Later, they were taken to custody in the present case on body warrant on 02.02.2019 and since then, they are in judicial custody in both these cases. Learned counsel submitted that after investigation, the charge sheet came to be filed on 14.08.2019. Even according to the prosecution, as per the charge sheet, accused No.4 came from Maharastra to Hubli and stolen the motorcycle bearing Registration No.KA-25-EL5325, which were shown by accused Nos.2 and 6. Except this role attributed against accused Nos.4 and 6, there is absolutely nothing in the charge sheet to connect the petitioners to the commission of the offence. The petitioners are in judicial custody for more than six years, without any reason.

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Learned Senior Advocate further submitted that

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even though specific allegations are made against these petitioners that they are the persons who have stolen the

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motorcycle which was used in the commission of offence, a belated FIR was registered on 02.12.2018 in Cr.No.308/2018 of Hubli Rural Police Station against accused Nos.1 to 3 in the said case, who are accused Nos.2, 4 and 6 in the present case. The said case is already compounded and ended in acquittal of accused Nos.1 to 3. He has produced the copy of the order sheet dated 09.11.2022 passed in CC. No.1548/2022 on the file of learned JMFC-II Hubli, to contend that the motorcycle bearing Registration No.KA-25-EL-5325 was restored to the possession of the applicant subject to conditions and since the matter was compounded, accused Nos.1 to 3 were acquitted in terms of Section 320(8) of Cr.P.C. Thus, the learned Senior Advocate would submit that there is absolutely no basis to detain the petitioners in custody.

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He further submitted that even though the charge sheet was filed on 14.08.2019, till date, only 10 witnesses were examined out of 138 witnesses cited in the charge sheet. Therefore, there is no possibility of completion of trial in near future. Even though, the contention taken by the respondent that the Special Court will be constituted to try the case, no concrete steps have been taken in that regard till date. Hence,

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detention of the petitioner in custody would amount to illegal incarceration without any basis.

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He placed reliance on the decisions of Hon'ble Apex Court in ' Javed Gulam V. State of Maharashtra'¹ , 'Sheik Javed Iqbal V. State of Uttar Pradesh'² and the decision of the Co-ordinate Bench of this Court in ' Amith Digvekar V.State of Karnataka'³ in support of his contention that detention of the petitioners indefinitely without there being any materials on record to connect them for the offence in question amount to infringement of their right, life and liberty guaranteed under Article 21 of the Constitution of India and that the State which is not in a position to conclude the trial in a time bound manner, cannot oppose granting bail. On these grounds, learned Senior Advocate for the petitioners seeks for allowing the petition.

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Per contra, learned Special Public Prosecutor opposing the petition submitted that serious allegations are made against all the accused in general and against the petitioners in particular. It is evident from the voluminous

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1 2024 SCC online SC 1693

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2 2024 SCC Online SC 1755

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3 Crl.P.No.927/2023; dated 16.07.2024

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documents that are collected by the Investigating Officer that these petitioners were having long and close association with accused No.1, who is the master mind and they formed a syndicate for the purpose of committing the offence, targeting the progressive thinkers in the Society. It was a criminal conspiracy between all the accused, including the petitioners, which led to commission of the offence. The motorcycle, which was stolen by accused No.4 at the instance of accused Nos. 2 and 6 and the same was used by accused Nos.2 and 3 in causing the death of the deceased. The motorcycle in question was ultimately recovered by Anti-Terrorist Squad at Mumbai and there are sufficient materials to show that very same motorcycle was used by accused Nos. 2 and 3 for proceeding to the house of the deceased and later, fled away from the scene of occurrence. The witnesses have identified the motorcycle and also the assailants. Therefore, it cannot be said that the petitioners are falsely implicated in the matter.

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Learned Special Public Prosecutor further submitted that both the petitioners are having criminal antecedents as petitioner No.1 being accused No.4 is the co-accused in Crime No.39/2015 of Maharashtra Rajarampuri Police Station

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registered for the offences punishable under Sections 302, 120B of IPC and Sections 3 and 20 of Arms Act, where they have murdered another progressive thinker by name Govind Pansare, wherein petitioner No.1 is arrayed as accused No.6. The petitioner is also involved in Gouri Lankesh murder case i.e., Crime No.221/2017 of Bengaluru Rajarajeshwari Nagar Police station, registered for the offences punishable under Sections 302, 120B, 114, 118, 109, 201, 203, 204 and 35 of IPC and Sections 25, 27, 3 of Arms Act and Sections 3,1(i) 3(2), 3(3), 3(4) of Karnataka Control of Organized Crimes Act, 2000( for short 'KCOCA') pending in Spl.CC.872/2018, wherein, he is arrayed as accused No.12. Moreover, he is arrayed as accused No.7 in Crime No.11/2018 of Maharashta state ATS Kalachowki Police Station under the provisions of Explosive Substances Act, 1908, Arms Act and Maharashtra Police Act. The petitioner is also involved in Crime No.200/2016 of Davangiri Badavani Police station and in Cr.No.308/2018 of Hubli Rural Police Station both for the offences punishable under Section 379 of IPC.

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Learned Special Public Prosecutor further submitted

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that similarly accused No.6, who is petitioner No.2 herein is

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accused No.11 in No.39/2015 of Maharashtra Rajarampuri Police Station and accused No.4 in Crime No.221/2017 of Bengaluru Rajarajeshwari Nagar Police Station and he is also arrayed as accused in Cr.No.308/2018 of Hubli Rural Police Station. Therefore, both the petitioners are having criminal antecedents and under such circumstances, they cannot be released on bail.

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Learned Special Public Prosecutor placed reliance on the decision of Hon'ble Apex Court in ' Satender Kumar Antil v/s Central Bureau of Investigation and Another'⁴ in support of his contention that to release the accused on bail there must be unreasonable delay in trial and further, such unreasonable delay should be considered as one of the grounds to enlarge the accused on bail. In the present case except delay alleged by the petitioners, there are no other grounds to enlarge them on bail and therefore, they are not entitled for grant of bail.

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Learned Special Public Prosecutor submitted that even though the learned Senior Advocate has referred to

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4 2022 7 Supreme 641

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release of one of accused in Crime No.221/2017 of Bengaluru Rajarajeshwari Nagar Police station, the said order is challenged by the respondent before the Hon'ble Apex Court and therefore, the same cannot be taken into consideration for releasing the petitioners on bail. In conclusion, learned Special Public Prosecutor submits that looking to the nature and seriousness of the offences, the petitioners are not entitled for grant of bail. The trial has already begun and hence, it cannot be concluded that there is unreasonable delay in holding the trial. Hence, he prays for dismissal of the petition.

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In reply, learned Senior Advocate submitted that even though, it is stated that the petitioners are the accused in Crime No.200/2016 of Davanagiri Badavane Police Station and Cr.No.308/2018 of Hubli Rural Police Station registered for the offences punishable under Section 379 of IPC, in both these cases, the petitioners were already acquitted after compounding the offence. Under such circumstances, it cannot be said that the petitioners are having any criminal antecedents.

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Learned Senior Advocate further submitted that

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even though the petitioners are arrayed as accused in Crime No.39/2015 of Maharashtra Rajarampuri Police Station, Crime No.221/2017 of Bengaluru Rajarajeshwari Nagar Police station, Crime No.11/2018 of Maharashtra State ATS Kalachowki Police Station, all these criminal cases were registered and the petitioners are implicated only after apprehending them. Even then, the only allegation against the petitioners is that they have stolen the motorcycle, which was used in commission of the offence. Apart from this allegation, there is absolutely nothing on record even according to the prosecution. When no serious allegations are made against the petitioners to attract Section 302 of IPC, the petitioners are entitled for grant of bail.

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Learned Senior Advocate also drew the attention of the Court to the FIR in Crime No.97/2014 of Raichur West police station to contend that the informant in the said case had filed the first information and FIR came to be registered against the deceased on 12/06/2014 itself, alleging commission of the offence punishable under Sections 295A and 298 of IPC. The allegation made against the deceased in the said case discloses that the deceased was not a progressive thinker, but

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he had made fun of a particular religion and therefore, he must be having large opponents and under such circumstances, it cannot be said that the petitioners have committed the offences. Even if the materials placed on record have to be accepted except saying that accused No.4 has stolen the motorcycle at the instance of accused Nos.2 and 6, no other allegations are made against these petitioners. Under such circumstances, they are to be enlarged on bail.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the petitioners are entitled for grant of bail under Section 439 of Cr.P.C.?”

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My answer to the above point is in ‘Affirmative’ for the following:

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R E A S O N S

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The FIR in Crime No.142/2015 came to be registered on 30.08.2015 against two unknown persons. It is the contention of the prosecution that the person wearing

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helmet had came, called the deceased and when he opened the door of his house, he was shot with a pistol and the assailant ran away. Another person was waiting in the motorcycle just in front of the gate and both the accused have fled from the spot.

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At the same time, there was murder of another writer by name Gouri Lankesh which was registered in Crime No.221/2017 of Bengaluru Rajarajeshwari Nagar Police station. During investigation, these petitioners were apprehended and it is only thereafter they were arrayed as accused in several cases referred to by the prosecution in the statement of objections including the present case.

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It is not in dispute that it is the specific contention of the prosecution that accused No.4 had stolen the motorcycle in question which was used by accused Nos.2 and 3 while committing the offences and such stealing of the motorcycle was at the instance of accused Nos.2 and 6. Apart from this, it is the contention of the prosecution that these petitioners were close associates of accused No.1 and they were having a syndicate of like minded to eliminate the progressive thinkers in the Society. The prosecution alleges criminal conspiracy

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between the accused, which is to be proved after full-fledged trial. But at present, the allegation is only regarding stealing of motorcycle which was said to have been used in commission of the offence.

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It is pertinent to note that admittedly, Crime No.200/2016 of Davanagiri Badavane Police Station and Crime Cr.No.308/2018 of Hubli Rural Police Station were registered against unknown person under Section 379 of IPC. It is not in dispute that Cr.No.308/2018 of Hubli Rural Police Station pertaining to the motorcycle in question is ended in acquittal of these petitioners and also accused No.2 for the offence punishable under Sections 379 of IPC as the case was compounded and the motorcycle in question was ordered to be released in favour of the applicant. When the charge for stealing the motorcycle ended in acquittal of the petitioners as the case was compounded, I do not find any reason to detain the petitioners in custody as the only other allegation is with regard to the criminal conspiracy between accused No.1 and all other co-accused.

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Even though it is stated that the petitioners are having criminal antecedents as they are arrayed as accused in No.39/2015 of Maharashtra Rajarampuri Police Station, Crime No.221/2017 of Bengaluru Rajarajeshwari Nagar Police station for the offence punishable under Section 302 of IPC, the fact remains that they were arrayed as accused in all these cases only after their apprehension in Crime No.221/2017 of Bengaluru Rajarajeshwari Nagar Police station. Under such circumstances, such criminal antecedents of the petitioners will not come in the way of enlarging the petitioners on bail.

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Admittedly, the prosecution has cited as many as 138 witnesses to prove its contention. It is also not in dispute that from the date of filing the charge sheet, i.e., from 14.08.2019 till date, only few witnesses were examined. Even though there is a proposal for constituting a Special Court to speed up the trial, nothing has been materialized even after lapse of several months.

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It cannot be disputed that long incarceration of the petitioners in custody would infringe their right to life and liberty as guaranteed under the Constitution of India. Looking

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into the nature of the allegations made against the petitioners and the probable length of time that could take for completion of the trial, I am of the opinion that detention of the petitioners in custody would amount to pre-trial punishment, which may not be proportionate with the offence alleged against them. Therefore, I am of the opinion that the petitioners are entitled to be enlarged on bail subject to conditions, which will take care of the interest of the prosecution.

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Accordingly, I answer the above point in the affirmative and proceed to pass the following:

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ORDER

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The petition is allowed.

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The petitioners are ordered to be enlarged on bail in Crime No. 142/2015 of Vidyagiri Police Station, pending in S.C.No.2/2020 on the file of the learned IV Additional District and Sessions Judge, Dharwad, on obtaining the bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) each with two sureties each for the likesum to the satisfaction of the jurisdictional Court, subject to the following conditions:

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a). The petitioners shall not commit similar offences.

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b). The petitioners shall not threaten or tamper with the prosecution witnesses.

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c). The petitioners shall appear before the Court as and when required.

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If in case, the petitioners violates any of the conditions as stated above, the prosecution will be at liberty to move the Trial Court seeking cancellation of bail.

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On furnishing the sureties by the petitioners, the Trial Court is at liberty to direct the Investigating Officer to verify the correctness of the address and authenticity of the documents furnished by the petitioners and the sureties and a report may be called for in that regard, which is to be submitted by the Investigating Officer within 5 days. The Trial Court on satisfaction, may proceed to accept the sureties for the purpose of releasing the petitioners on bail.

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Sd/JUDGE

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SPV

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List No.: 19 Sl No.: 1

Vasudev Bhagawan Suryavamshi Alias Vasu Alias Mechanic v. the State of Karnataka

Case brief

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Vasudev Bhagawan Suryavamshi Alias Vasu Alias Mechanic v. the State of Karnataka

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