Mr Riyaz M H @ Nisar Vs the State of Karnataka

THE STATE OF KARNATAKA THROUGH THE SUB INSPECTOR OF POLICE MULKI POLICE STATION, DAKSHINA KANNADA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-01.

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…RESPONDENT

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(BY MS. ASMA KOUSER, ADDL. SPP)

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THIS CRL.P IS FILED U/S.439 CR.P.C (FILED U/S.483 BNSS) PRAYING TO GRANT REGULAR BAIL TO THE PETITIONER/ACCUSED NO.5 IN CONNECTION WITH S.C.NO.47/2021 (ARISING FROM CRIME NO.38/2020 OF MULKI P.S.) PENDING ON THE FILE OF VI ADDL. DISTRICT AND

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HC-KAR

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SESSIONS JUDGE, D.K., MANGALURU FOR THE OFFENCES ALLEGED UNDER SECTIONS 143, 147, 148, 114, 109, 120B, 341, 307, 302 READ WITH SECTION 149 OF INDIAN PENAL CODE, 1860.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.08.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

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CAV ORDER

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This petition under Section 483 of BNSS, 2023 is preferred by accused No.5, to enlarge him on bail in SC No.47/2021 pending on the file of VI Additional District

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and Sessions Judge, DK, Mangaluru, arising out of Cr.No.38/2020 of Mulki Police Station, Mangalore City.

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Heard the learned Senior counsel Sri P.P.Hegde appearing for the counsel on record for petitioner, Ms. Asma Kousar, learned Addl. SPP for the State and perused the material on record.

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At the out set, it is relevant to mention that this

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is the fifth petition in which the petitioner is seeking bail.

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HC-KAR

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On three occasions, bail petitions were withdrawn and one more petition was dismissed for non-prosecution.

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This petition is presented seeking grant of bail to the petitioner, mainly on the ground of parity and long incarceration of the petitioner in custody. Further, on the ground that the witnesses examined before the trial Court have not divulged the role of the petitioner etc.

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The contention of the learned Senior counsel

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can be summarized as under:

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i. Out of the 10 accused chargesheeted, accused Nos.1, 6, 7, 9 and 10 are already enlarged on bail, out of them, accused No.7 is similarly placed as accused No.5, petitioner herein, against whom overt acts are attributed.

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ii. Out of 78 chargesheet witnesses, 31 witnesses are examined. Remaining witnesses are largely formal and police witnesses. Thus, no material witness remains to speak against the petitioner and therefore, his further custodial detention is wholly unwarranted.

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iii. There is an inordinate delay in completion of trial. Petitioner is in judicial custody from 6.6.2020, for more than five years. His prolonged incarceration amounts to violation of his fundamental right to speedy trial under Article 21 of Constitution of India.

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The learned Senior counsel has placed reliance on a judgment of the Apex Court reported in 2024 SCC Online SC 1693 in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another , pressing into service para-19 of the said judgment, which is extracted hereunder:

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"19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."

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HC-KAR

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Apart from the above grounds, the learned Senior counsel would also contend that the petitioner is innocent of the alleged offence and he has been falsely implicated in the case and even if the testimony of the eyewitnesses is taken into consideration, their statements are contradictory and inconsistent insofar as the petitioner is concerned.

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Learned Addl. SPP has argued as under:

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i. The offences alleged are grave and heinous in nature, involving in a brutal assault on the deceased. Petitioner is one of the assailant, who stabbed the deceased with a knife and assaulted with soda bottle and also caused grievous injuries to one of the eyewitness.

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ii. CWs.1 to 4 are the eyewitnesses, out of them CWs.2 and 3 are the injured witnesses. Their statements clearly reveal the role of the petitioner. The said witnesses examined before the trial Court as PWs.2 to 5 have supported the case of prosecution.

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HC-KAR

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iii. Petitioner is not similarly placed as the accused who are granted bail, hence, he is not entitled for bail on the ground of parity, as his role is distinct and graver.

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iv. The CCTV footage clearly depicts the overt act of the petitioner in assaulting the deceased and the injured eyewitnesses.

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v. There is a serious threat to the eyewitnesses,

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who have deposed before the Court. Further, possibility of intimidation or influence over material witnesses cannot be ruled out.

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vi. The prosecution is conducting trial diligently. Considering the heinous nature of the crime, prima facie evidence against the petitioner, he is not entitled for bail.

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The learned Addl. SPP has referred to a judgment of the Apex Court in case of Ajwar v. Waseem and another reported in SLP (Crl.) Diary

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No.33018/2025 DD 29.7.2025 .

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HC-KAR

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Briefly stated, prosecution has alleged that on account of previous enmity, accused No.1 conspired with accused Nos.2 to 10 to commit the murder of Abdul Lathif (deceased) and CWs.2 and 3 and on 5.6.2020 at about 4.00 p.m., they intercepted the car in which the deceased was traveling along with CWs.1 to 3, near Mulki Vijaya Sannidhi, Karunadu village, Mangaluru City. They attacked them with knife, soda bottle, clubs and stones, and committed the murder of Abdul Lathif at the spot and caused grievous injuries to CWs.2 and 3.

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As per P.M. report, deceased has sustained 13 external injuries. Cause of death is due to perforation of heart secondary to incised penetrating injury to the chest.

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CW2 has sustained four incised injuries, out of which injuries 2 and 3 are grievous in nature. CW3 has sustained eight incised injuries, out of which injuries 2, 6 and 7 are grievous in nature, as per wound certificates.

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HC-KAR

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As per prosecution, petitioner/accused No.5 was armed with a soda bottle and a knife. He along with accused Nos.3, 4 and 7 first assaulted CWs.2 and 3 and then the deceased was chased and assaulted with knife, soda bottle and clubs.

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It is contended by the learned Senior counsel that accused Nos.1, 6, 7, 9 and 10 are enlarged on bail and therefore, on the ground of parity, petitioner is also entitled for bail.

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As per chargesheet, accused Nos.2, 3, 4, 5 and 7, were armed with weapons like knife, soda bottles, clubs and stones. They chased the deceased and assaulted him with the said weapons. The allegations against accused No.6 is that he dragged the deceased and pushed him and along with accused Nos.9 and 10 instigated others to kill him.

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From the above and the statements of the

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eyewitnesses, it is clear that the role of accused Nos.1, 6,

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9 and 10 are not similar to that of the petitioner. The petitioner who was armed with a knife and a soda bottle has assaulted the deceased as well as CW3, one of the injured eyewitness.

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Insofar as accused No.7 is concerned, The bail granted to him by the Sessions Court was initially cancelled by this Court in Crl.P.No.2557/21. SLP (Crl.) 7586-7592/2021 filed by accused No.7 and other accused was disposed of by the Apex Court reserving liberty to move afresh after examination of the eye witnesses. Bail petition was subsequently dismissed by the Sessions Court. However, he was enlarged on bail by this Court in Crl.P.No.7916/2025 DD 7.7.2025. The co-ordinate Bench of this Court has observed that since accused Nos.6, 9 and 10 as against whom similar allegations are found in the chargesheet have already been granted regular bail, hence, the said accused is also entitled for similar relief on the ground of parity.

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HC-KAR

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It is pertinent to mention that against the petitioner/accused No.5 there is a distinct role attributed in the chargesheet that he was armed with a knife and soda bottle. Accused No.7 was armed with a concrete stone. As per chargesheet, deceased was assaulted with knife, soda bottle and club. Petitioner’s role is more serious, distinct and graver. Hence, plea of parity cannot be accepted. The principle of parity does not apply automatically. Each case must be considered on its own merits.

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The Apex Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, reported in (2021) 6 SCC 230 , as observed that, while applying principle of parity, court cannot exercise its powers in a capricious manner and has to consider totality of circumstances before granting bail. Parity while granting bail must focus upon role of accused, and not only on weapon carried by accused. Merely observing that another accused who was granted bail was armed with similar weapon is not

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sufficient to determine whether bail can be granted on basis of parity. In deciding aspect of parity, role attached to accused, their position in relation to incident and to victim is of utmost important.

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No doubt, the petitioner is in judicial custody from 6.6.2020. However, the right to speedy trial cannot be stretched to override the gravity of the offence. It is well settled that among other circumstances the factors like (i) severity of punishment in the event of conviction (ii) danger of accused fleeing from justice, if released on bail (iii) reasonable apprehension of the witnesses being influenced or threatened apart from gravity of the accusation have to be taken into consideration.

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The fact that the trial is in progress is not in dispute. 11 witnesses are already examined. It is pertinent to mention that one of the witness i.e. CW20 has lodged a complaint alleging threat from accused No.7 and a case has been registered. It is submitted by the learned Senior counsel that the proceedings in the said case has

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HC-KAR

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been stayed by this Court. However, the subsequent development shows that the witnesses are being threatened.

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The learned Addl. SPP has contended that the petitioner has criminal antecedents with two other cases pending against him, which reflects his criminal propensity and disentitles him from releasing on bail.

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In the above facts and circumstances, this Court is of the considered view that petitioner is not entitled for bail.

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Petition is dismissed .

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Sd/(MOHAMMAD NAWAZ) JUDGE

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TL

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List No.: 1 Sl No.: 1

Mr Riyaz M H @ Nisar v. the State of Karnataka

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Mr Riyaz M H @ Nisar v. the State of Karnataka

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