MUJAMIL URF MUJJU URF MUJAKKIR v. THE STATE OF KARNATAKA

(BY SMT. ANITA M. REDDY, HCGP) THIS CRL.P. IS FILED U/S. 439 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT, ALLOW THE PETITION AND ENLARGE THE PETITIONERS ON BAIL IN CRIME NO. 115/2023 OF RESPONDENT GOLGUMBAZ P.S OF VIJAYAPURA DISTRICT REGISTERED FOR OFFENCES U/SEC. 120B, 109, 341,307,506 R/W SEC. 149 OF IPC AND SECS. 25(1)(A), 25 (1B)(A) AND 27 ARMS ACT, NOW PENDING ON THE FILE OF PRL CJM VIJAYAPURA. IN CC 331/2024 IN THE INTEREST OF JUSTICE AND EQUITY. IN CRL.P NO. 200987/2024 BETWEEN: MAHAMMAD @ MOHAMMED S/O. BABUSAB NADAF NOW AGED 33 YEARS, OCC. BUSINESS R/O. GUMMAJ GALLI, NEAR HAKEEM CHOWK, TQ AND DIST VIJAYAPURA-586101. (BY SRI. SHRIKANT T. PATIL, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH POLICE GOLGUMBAZ P.S. VIJAYAPURA, DIST VIJAYAPURA-586101 BY ADDL. SPP. HIGH COURT OF KARNATAKA KALABURAGI BENCH-585103. …PETITIONER …RESPONDENT (BY SMT. ANITA M. REDDY, ADVOCATE) THIS CRL.P. IS FILED U/S. 439 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT, ALLOW THE PETITION AND ENLARGE THE PETITIONER ON BAIL IN CRIME NO. 115/2023 OF RESPONDENT GOLGUMBAZ P.S OF VIJAYAPURA DISTRICT REGISTERED FOR OFFENCES U/SEC. 120B, 109, 341, 307, 506 R/W SEC. 149 OF IPC AND SECS. - 3 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 25(1)(A) AND 27 ARMS ACT, NOW PENDING ON THE FILE OF PRL. CJM VIJAYAPURA, IN CC 331/2024 IN THE INTEREST OF JUSTICE AND EQUITY. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL ORDER (PER: HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel for the petitioners and the learned HCGP for the respondent-State.

The Golgumbaz Police Station Vijayapura, registered the FIR for the offences punishable under Sections 120 (B), 109, 341, 307 and 506 read with Section 149 of IPC and Sections 25 (1) (a), 25 (1b), 27 (1) (a) of the Arms Act on the basis of the complaint filed by one Sohail @ Mohammed Sohail s/o Mohammed Rafi Kakkalameli, wherein it was stated that on 10.11.2023, he and one Amanulla had been to the market and they were returning on their motorcycle and on the way, their friend Tousif also got on to the motorcycle and while they were near the Hanuman Temple of Waddar Oni, the accused - 4 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 Mohammed Nadaf, Zameer, Khadar Nadaf, Malikrehan and several others came on cars and motorcycles and waylaid the complainant and his friends. The complainant and his friends left the motorcycle at the spot and while they were running away to escape from the assault of the accused, the accused Sameer had fired from the pistol and when the complainant fell down, the accused Mohammed fired from his pistol, which resulted in injury to the ear of the complainant. The others were holding machetes and they were trying to assault the complainant and his friends. The other accused that were present were instigating the assailants and when the people gathered and complainant and his friends shouted, they ran away on their motorcycles and cars. It was stated that the incident took place at about 04.00 p.m. While the complainant was in the hospital, the statement was recorded by the police and came to be registered in Crime No.115/2023.

Subsequently, investigating officer commenced the investigation and the further statement of - 5 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 the complainant was recorded by the I.O. on the next day i.e. on 11.11.2023. In his further statement complainant has stated that at the time of the incident, the accused No.1-Mohammad Nadaf, accused No.2-Tohid Atanur, accused No.3-Mujamill @ Mujju Nadaf and Habibulla Inamdar were alone present at the spot and they were holding pistol and the machetes. In the anxiety of having sustained the injuries, the complainant had stated in a complaint that several 8 to 10 others were also present at the spot and after recovering he is making a further statement that only the above four persons were present at the spot. The above four persons are the accused Nos.1, 7, 9 and 11 as mentioned in the charge sheet. It is relevant to mention at this juncture that the accused Nos.2, 5, 6 and 8 as per the FIR were not charge sheeted by the Investigating Officer and only the remaining persons were included in the charge sheet.

The charge sheet discloses that the relative of the complainant Shaik Modin was facing the charges of - 6 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 murder of one Hyderali, who was a relative of the accused. Therefore, there was enmity between the accused and the complainant and that was the motive for the incident.

Now accused Nos.9 and 11 who are petitioners in Crl.P.No.200681/2024 and the accused No.1, who is petitioner in Crl.P.No. 200987/2024 have approached this Court seeking bail under Section 439 of Code of Criminal Procedure (for short 'Cr.P.C."). It is relevant to mention that accused Nos.9 to 11 and 17 to 19 had earlier approached Court seeking Crl.P.No.200069/2024 and the bail in respect of accused Nos.9 and 11 was rejected and the other accused were enlarged on bail. Now again accused Nos.9 and 11 have approached this Court with second bail application in Criminal Petition No.200681/2024 and the accused No.1 has also approached this Court for grant of bail in Criminal Petition No.200987/2024. The allegations made against these accused is that they were also involved in conspiracy in mounting assault on the complainant and had conspired - 7 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 in procuring the arms etc. The further submission of the complainant and the charges mentioned in the charge sheet show that it was the accused No.1, who was in possession of pistol and accused No.9 and 11 were present at the time of the incident. The further statement of the complainant recorded by the investigating officer on

11.11.2023 while he was taking treatment in hospital would show that the accused No.1 had fired at the complainant and the bullet smeared his ear and he fell down. Then the accused ran away from the spot. The learned counsel appearing for the petitioners would submit that as per the further statement of the complainant, only four of the accused were present at the spot and therefore, the involvement of accused No.9 and 11 is doubtful. The further statement of the complainant makes the case of the prosecution doubtful and therefore these petitioners may be enlarged on bail.

Per contra, learned HCGP respondent-State submits that the very fact of accused - 8 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 No.1 possessing pistol which is a firearm would show that the accused had a conspiracy to murder the complainant. It is submitted that the motive for the commission of offence is clearly available in the charge sheet papers and the statement of the witnesses and the investigation papers would show that these accused were also present at the spot of the incident. He contends that there is no change of circumstances, which are brought on record and therefore the petitioners are not entitled for grant of the bail.

A careful perusal of the charge sheet papers would show that the Mohammad S/o. Babusab Nadaf, Tohid S/o.Mohammedhanif Atanur, Mujamil S/o. Abdulkhadar Nadaf and Habibulla S/o.Khajabasha Inamdar were alone present at the spot when the incident took place. This would clearly indicate that it is accused No.1, 9 and 11 were present at the spot along with accused-Tohid S/o. Mohammadhanif Atanur. This aspect had been considered by this Court while deciding the matter in - 9 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 Criminal Petition No.200069/2024 in paragraph 8. The presence of these petitioners at the spot was noted by this Court and therefore, the bail applications of accused No.9 and 11 were rejected. Now it is submitted by the learned counsel for the petitioners that the accused No.9 and 11 were not found to be in possession of any weapons, their involvement in the alleged offence is only because they were present at the spot and therefore, in the absence of any proof of assault by them, they may be granted bail. So far as accused No.1 is concerned, it is submitted that though he is alleged to have possessed a firearm, the injury to the complainant was only to his ear as the bullet had smeared his ear. The injury being minor, accused No.1 may be granted bail as the petitioners are ready and willing to abide by all the conditions that may be imposed by this Court.

It is relevant to note that the bail application filed by accused Nos.9 and 11 was rejected by the Court on the ground that their presence was spoken to by CW1 - 10 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 and therefore, they were not entitled for the bail. It was alleged that the other accused had only participated in the conspiracy. It is also relevant to note that when the weapon was in the hands of accused No.1 and the incident where the accused Nos.9 and 11 had actively participated in commission of offence is a matter to be decided at the time of trial. The gravity of the offence alleged against the accused No.1 is severe and there is no explanation by accused No.1 as to how and for what reason he was in possession of the firearm. Therefore, when the trial is not yet commenced, the detention of accused Nos.9 and 11 would be nothing but pre-trial punishment. Under these circumstances, considering the gravity of the offences and the allegations made against the accused Nos.9 and 11, this Court finds that the accused Nos.9 and 11 have to be enlarged on bail but that would not be so for the accused No.1. Under these circumstances, the criminal petition No.200681/2024 deserves to be allowed and Criminal petition No.200987/2024 deserves to be rejected. Hence, the following: - 11 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 ORDER The Criminal Petition No.200987/2024 filed by petitioner- accused No.1 is hereby rejected. The Criminal Petition No.200681/2024 filed by petitioners- accused Nos.9 and 11 is hereby allowed on they executing personal bond for a sum of Rs.2,00,000/- each with two sureties for the likesum subject to following conditions: i) Accused No.9 and 11 shall appear before the Trial Court on all hearing dates as and when required. ii) They shall not tamper the prosecution witnesses either directly or indirectly or threaten them from deposing before the Trial Court. iii) They shall not leave the jurisdiction of the Trial Court without prior permission of that court. - 12 - NC: 2024:KHC-K:6933 CRL.P No. 200681 of 2024 C/W CRL.P No. 200987 of 2024 iv) They shall not indulge in any criminal activity during the pendency of the case. v) In case they are involved in any criminal case, the bail granted shall stand revoked. Sd/- (C M JOSHI) JUDGE YAN LIST NO.: 19 SL NO.: 6