[Unlawful Assembly] Individual Role Of Each Accused Cannot Be Considered While Deciding Bail Application: Karnataka High Court

A single judge bench of Justice H P Sandesh made the observation while rejecting the successive bail application filed by accused Abdul Majeed who was charged under sections 143, 144, 147, 148, 341, 342, 323, 324, 364, 307, 302, 506 R/W 149 OF IPC. Earlier his bail application was rejected by the court vide order dated 01.07.2022, on merits.

Subsequently he approached the court contending that his presence was not recorded in the spot mahazar. Moreover, in the remand applications he was not named and no overt act against the petitioner is noticed as per the CCTV mahazar, except that he was present at the spot of the incident.

Further, it was claimed that he has been in judicial custody since 20.08.2021 and the case of the petitioner is similar to accused No.7, 8 and 4, who have been enlarged on bail.

The bench on going through the records noted that the seizure mahazar of the mobile is very clear that the petitioner was present along with the other assailants and the contention that the mobile video does not show his presence cannot be accepted.

It said “The material clearly discloses that this petitioner was very much present at the time of committing the murder and exchanged the words between this petitioner and other assailants with the victim.”

Then it observed “There were 26 injuries found on the dead body of the deceased and 11 injuries on the injured Vikram Singh by blunt and sharp weapons. In the case on hand, it has to be noted that CW19 eye-witness when he tried to prevent assaulting the victim, he was also taken in the car and in his presence only inflicted the injuries and committed the murder.”

Following which it held “Under such circumstances, individual role of each of the accused cannot be considered at the time of considering the bail petition in an offence punishable under Section 302 of IPC and more particularly, when they are party for the offence with Section 149 of IPC.”

In coming to the finding the bench also relied on the Supreme Court judgment in the case of KUMER SINGH VS STATE OF RAJASTHAN AND ANOTHER reported in 2021 CRL.L.J. 4244, wherein it was held that the individual role of the accused is not required to be considered when they are alleged to have been part of sharing of common intention.

Then referring to the earlier order rejecting bail application the bench said “This Court while considering the petition on merits taken note of the very presence of the petitioner as well as the eye-witness CW19 and CW19 statement was recorded on the very next date of the incident and merely not mentioning the statement of PW19 in the remand application cannot be a ground and each and everything of statement of CW19 cannot be extracted in a remand application.”

Further, the court also rejected the ground contented by the petitioner seeking bail on grounds of parity as co-accused have been released on bail. It opined “This petitioner was very much present at the time of committing the murder and also scolded the victim, and the same is evidenced in the document produced by the petitioner itself regarding seizure of mobile.”

It also turned down the contention that subsequently, improvement was made in the statement of CW19 while filing the charge-sheet by saying “The said fact is a matter of trial and prima facie material discloses against this petitioner.”

Accordingly it held “I do not find any merit in the contention of the learned counsel for the petitioner to exercise the discretion in favour of this petitioner in a successive bail petition when there is no changed circumstances.”

Case Title: Abdul Majeed And State of Karnataka

Case No: CRIMINAL PETITION NO.10830/2022

Citation: 2023 LiveLaw (Kar) 16

Date of Order: 16-01-2023

Appearance: Senior Advocate Hashmath Pasha for Advocate Kariappa N A for petitioner

HCGP K K Krishna Kumar for respondent.

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