IN THE HIGH COURT OF KARNATAK AT BANGALORE
Criminal Petition No___/2016
(MEMORANDUM OF CRIMINAL PETITION UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE)
IN THE COURT OF PRINCIPAL DISTRICT AND SESSIOSN JUDGE,BANGALORE RURAL, BANGALORE
Criminal Misc. Petition No 00/2016
: Before Lower Court Before this Court
BETWEEN:
ABC
S/o xyz
Aged about 33 year
Bangalore City PETITIONER. PETITIONER
AND:
State by Kumalagod Police,
Represented by Public Prosecutor,
Bangalore RESPEONDENT RESPONDENT
MEMORUNDAM OF CRIMINAL MISELLEONUS PETITION UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE
The petitioner most respectfully submit as under:
- The address of the parties for the purpose of court notices, summons etc., is shown in the above cause title. The petitioners may also be notified through their advocate Mr.A Advocate No.00/8/2, Bangalore 560 080.
- One QRS-complainant appeared before the respondent Police and filed a complaint dated 12/08/2015 stating that around 8.50 on the said date her Husband as usual left the House for work; that around 9.10 one DES who is the resident of our village came to our House and informed that, today when he was going for work on his Bike her Husband requested to drop him till the Bus stop and when he and her Husband were going on the Bike near Sollapurdamma Temple; one Biscuit colour Bolero came and intercepted our Bike and few persons got down from the vehicle and assaulted your Husband with Machete; it is further stated in the complaint that, the said DES came to the house of the complainant and informed her the same. It is furtehr stated in the complaint that, immediately she along with her sister, Father and Mother went to the spot of the said assault on her Husband and saw two fingers of his right hand being severed from his Hand, and he further being hit on the Head, right cheek and chest with a Machete- which was found on the spot. That, immediately we took him in an Ambulance and admitted him to BGS Hospital. It is further alleged in the complaint that she (complainant) was informed about there being a old rivalry dispute between her Husband and one M & R both being residents of Sonnenahalli village and that in relation to same her Husband had informed her (complainant) about the said M and R had earlier assaulted him and that this time the said persons with an intention to kill have got assaulted her Husband; as such requested to arrest the aforementioned persons and take action legal action against them. The respondent Police upon receipt of said complaint registered Crime No.00/2015 for the offences punishable under section 307 of the Indian Penal Code against the Petitioner and one another. Certified Copy of the complaint along with the FIR is herewith produced as Annexure A
- It is submitted that, thereafter said N has since, succumed to the injuries on 15/08/2015 and that the offences have been converted to section 120(B),302 R/w 34 of IPC. Copy of the requisition filed before the court is herewith filed and marked as Annexure B
- It is submitted that thereafter as per the remand application filed before the IInd Additional CJM court, Bangalore Rural District; Petitioner herein S (Accused No 1), G (Accused No 2) and P (Accused No 3) were apprehended on 23/08/2015 and that they have allegedly confessed/stated to the fact of they having assaulted the deceased on the instigation of Accused No.4 M and H. Copy of the remad application is herewith produced and marked as Annexure C
- The petitioner who is innocent of the offences alleged against him approached the learned District and Sessions, Judge, Bangalore Rural District by filing Crl.Misc. 00/2016 petition under section 439 of the Criminal Procedure Code seeking Bail. However, the learned District ad Sessions Judge vide its order dated 24/02/2016 was pleased to reject the Bail of the petitioner. Copy of the order passed bin Crl.Misc. No 00/2016 is herewith produced and marked as Anenxure D Hence, this petition seeking bail at the hands of this Hon’ble court in CC No.00/2015 on the following amongst other grounds.
G R O U N D S[[
- The complaint is filed based on a hearsay statement of one Jayanna; who belongs to the same village. The complainant in her complaint has clearly stated about a civil dispute in respect of Site No. 142; hence in this background petitioner has been falsely implicated in the above crime just to harass him at the hands of the respondent Police.
- The petitioner has been falsely implicated in the above case at the instance of the complainant who is inimical against this petitioner and alleged accused No 2 to 4 in the said case; even as per J- who was present at the spot and who is of the same village there is no mention of this petitioner being present at the scene and has assaulted the deceased .
- Name of the petitioner do not find place in the complaint and there is no allegation of the petitioner being involved in the commission of the aforesaid offence.
- The complaint merely states of there being a old rivalry between M and the deceased N and as such, it is stated in the complaint that one M and R would have got assaulted the deceased N.
- The allegation against petitioner as per the remand application filed before the learned magistrate seeking their judicial custody and which is based on the confessional statement of Co-Accused No 2 G , is that this petitioner upon being handed over with the Laang by said G assaulted the deceased N.
- That, this Hon’ble High court of Karnataka has allowed and enlarged accused No.2,3 and 4 on Bail in Crl.Petition No.00/2015 and 00/2015 and as such, on the ground of parity also the petitioner herein is entitled for the relief of Bail at the hands of this Hon’ble court. Copy of the order is herewith produced and Annexure E and F respectively.
12.Petitioner is in judicial custody for the last more than 5 months i,e since his arrest on 23/08/2015 and the respondent Police has also filed chargesheet in the above Crime No.00/2015 and the same has been registered as CC No.00/2015 .
- As held by the Supreme Court on numerous occasions bail should be the rule and jail an exception, the petitioners cannot be subjected to a pre trial conviction.
- The detention of the petitioner amounts to pre-trial conviction moreso when his presence is no more required for Police interrogation. Hence on this ground alone the petitioner is entitled to be released on bail.
- That the Court would be justified in granting Bail to the petitioner after imposing appropriate condition/s to ensure of he not fleeing bail and tampering with the witnesses.
- The petitioner is ready and willing to abide by any of the conditions that may be imposed by this Hon’ble Court while enlarging him on bail.
- The petitioner own lands at Hobli, and he has deep roots in the society. Hence there cannot be any apprehension of his jumping bail in the event of his enlargement on bail by this Hon’ble Court.
- Any other ground or grounds not specifically pleaded will be urged at the time of hearing with due notice to other side and with due permission of this Hon’ble Court.
PRAYER
WHEREFORE, for the reasons stated herein above, this Hon’ble court be please to direct the concerned court to enlarge the petitioner on bail in CC No.00/2015 in the interest of Justice and Equity.
Bangalore Advocate for Petitioner
Date:2/3/2016
IN THE HIGH COURT OF KARNATAKA, BANGALORE
Criminal Petition No. /2016
BETWEEN:
ABC ……..PETITIONER
AND:
State by Kumalagod Police, …….RESPONDENT
MEMO OF APEARANCE
The undersigned has been entrusted and authorized to appear on behalf of ABC who has been arrayed as Accused No 1 in CC No.00/2015 pending before the learned IInd ACJM, Bangalore.
Hence, this Memo.
Date: 02/03/2016 Advocate for accused No 1
Roll No 204/2001
No.00/8/2, Bangalore
56 0080
