Karnataka HC Grants Bail To 126 Persons Doubting Police Version That They Tried To Spread COVID-19 By Attacking Health Workers

Justice John Michael Cunha while granting bail to Vazeer Khan and others said

"Having regard to the overall nature of the case and the character of the evidence collected by the prosecution, in my view, prosecution has to go a long way to sustain the charges against the petitioners. Even Though charge under section 307 of IPC is invoked, I do not find any prima facie material in support of the said charge. There is also no material to show extensive damage to the public property as sought to be projected by the prosecution. No compelling circumstances are made out by the prosecution to deny bail to the petitioners."

The court has directed the accused to be released on a personal bond of Rs 1 lakh and two sureties of like amount. Before their physical release, they shall be subjected to medical examination and if any of the petitioners are found with symptoms of COVID-19, they shall be dealt with as per the guidelines and advisories issued by the Government of India and Government of Karnataka. In the event the petitioners disregard or violate any of the directions or guidelines issued police can seek to cancel their bail.

The accused were charged under sections 3, 4 of Prevention of Destruction and Loss of Property Act and Section 51 (b) of Disaster Management Act, section 506, 147, 148, 149, 324, 332, 307, 269, 323, 201, 271, 353 of Indian Penal Code. They have been in custody since their arrest on April 20. The sessions court had on May 5, rejected the bail applications following which they approached the high court.

Senior Advocate C.V.Nagesh, appearing for the petitioners had contended that the allegations made against the petitioners are bald in nature. None of the petitioners were named in the FIR. All the petitioners were arrested on suspicion and have been unlawfully detained. The circumstances projected by the prosecution indicate that there was no intention whatsoever on the part of the petitioners to cause any grievous injury to the petitioners much less an attempt to murder. The wound certificates relied on by the prosecution indicate that the complainant and other witnesses have suffered some abrasions and contusions which do not make out ingredients of section 307 IPC. The other offences alleged against the petitioners are punishable with imprisonment not more than three years. Even if entire material collected by the Investigating Agency is accepted, no overt acts are forthcoming against the petitioners.

Special Public Prosecutor V M Sheelavant opposed the bail plea saying that seven of the accused were found positive for COVID-19 and at present 67 positive cases are detected in Ward No.135. Under the said circumstances, if the petitioners are released on bail, they would once again enter the place of incident, which is presently under seal down and there are chances of infection spreading to the entire locality. Moreover, the sovereignty, fraternity and integrity of the country takes precedence over Article 21 of the Constitution, it was sought for dismissal of the petition.

Justice Cuna rejected the objection that accused would be carriers of virus if released on bail by saying "This cannot be a ground to deny bail to the petitioner as adequate safeguards are already in place by way of precautionary measures to prevent spread of the pandemic and the petitioners could be put on terms to abide by the guidelines or advisories issued by the State Organs and respective authorities."

Bench Raised doubt on police version of the incident.

The court after going through the chargesheet said

"Prosecution has rested its case on the statements of the medical officers attached to the BBMP and an Asha Worker. The other witnesses cited in the charge sheet are police witnesses and not a single person from the general public has been cited as a witness to the alleged occurrence."

It added

"The statement of the medical officers of BBMP namely CWs.2, 3 and 4 which indicated that none of the police personnel were either attacked or assaulted by the mob in the presence of CW-2 to CW-5. Their statements go to show that when these witnesses had been to 10th Cross, Arafat Nagar along with police at about 6.50 p.m. for the purpose of sending 58 residents of 10th Cross, Arafat Nagar for quarantine, about 50 to 60 members of the public obstructed them, saying that the suspected persons should be examined at the spot and if the medical officers decide to take them to any other place, they should also take the said 50-60 persons to that place. "This statement may amount to unlawful obstruction caused by the mob consisting of 50 to 60 persons from discharging the official duties by CWs.2 to 4, but these witnesses have nowhere stated in their statements that during the occurrence, either the said mob consisting of 50 to 60 persons or any other members of the unlawful assembly pelted stones at the police or assaulted them."

Termed Police statements of the incident stereotyped

Justice Cuna said

"The prosecution is left with only the statement of the police witnesses. Though these police witnesses have given stereotyped statements stating that members of the unlawful assembly pelted stones on them and also physically assaulted them causing injuries, reading of the wound certificates reveal that the injured police personnel were treated in private hospital and it is noticed that except in two cases, all other persons had sustained contusions."

Further he said

"A perusal of the property form produced along with the charge sheet indicates that in respect of the alleged incident, two broken plastic chairs and two clubs and a stone were seized from the spot of occurrence, which goes against the very case of the prosecution that the entire mob was armed with deadly weapons and had assaulted number of police personnel with deadly weapons causing grievous injuries."

No IP Parade Done Chargesheet filed

One of the grounds for opposing the bail application by the SPP was that identification of the accused is required to be done. To which the court said "The circumstances of the case indicate that the petitioners were in judicial custody ever since the date of their arrest and no steps appear to have been taken by the Investigating Agency to identify the petitioners. It is not known as to how the charge sheet could have been laid against accused persons without the accused being identified. Needless to say that in a charge under section 143 of IPC and allied offences, the identity and participation of each accused is required to be fixed with reasonable certainty. In the present case, a perusal of the case records go to show that without ascertaining the identity of the accused, petitioners are sent up for trial."

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