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2020 Supreme(Kar) 321
IN THE HIGH COURT OF KARNATAKA
John Michael Cunha, J.
Ashik @ Mohammad Asik And Others - Appellants
Versus
State Of Karnataka And Others - Respondents
Criminal Petition Nos.776, 778, 860 and 957 of 2020
Decided On : 17-02-2020
Sri. Lethif B, Advocate, for the Appellants; Sri. V.M. Sheelavant, SPP-I a/w Sri. Thejesh P., HCGP, for the Respondent
Headnote:
Karnataka Prevention of Destruction & Loss of Property Act, 1981 - Section 2(A) - Citizenship Act – Indian Penal Code - Sections 143, 147, 148, 188, 353, 332, 324, 427, 307, 120B r/w.149 – Criminal Procedure Code - Section 144 - Members of unlawful assembly armed - National Register of Citizens - Petitioners contend that they have been falsely implicated in alleged offences without there being specific evidence of their presence at spot of occurrence - Allegations constituting ingredients of offences are not forthcoming in remand application or in complaint - Petitioners are doing different activities and business in city and some of petitioners had come to city for treatment and purchase of household articles and they were not members of any organization - Respondent Police themselves fired from their service weapons and killed two innocent public and injured several other individuals during occurrence - Police have not registered even a single case on complaints filed by injured and relatives of dead persons and thus petitioners seek their release on bail – Held, In instant case FIRs in Crime are registered on allegations that petitioners were members of an unlawful assembly consisting of Muslim youth and that they conspired together to set fire to police station and cause destruction to public properties and that they were armed with sticks stones and soda bottles etc - In an offence involving large number of accused identity and participation of each accused must be fixed with reasonable certainty - In present cases a perusal of case records produced by learned SPP-I indicate that identity of accused involved in alleged incident appear to have been fixed on basis of their affiliation to PFI and they being members of Muslim community - Though it is stated that involvement of petitioners is captured in CCTV footage and photographs no such material is produced before this Court showing presence of any one of petitioners at spot armed with deadly weapons - In statement of objections it is stated that there was a hint as to holding of protest by Muslim youth opposing implementation of CAA by Central Government and in that connection Commissioner of Police had imposed prohibitory order under section 144 Criminal Procedure Code - This assertion indicates that common object of assembly was to oppose implementation of CAA and NRC which by itself is not an unlawful object within meaning of section 141 of IPC - Material collected by Investigating Agency does not contain any specific evidence as to presence of any one of petitioners at spot on other hand omnibus allegations are made against Muslim crowd alleging that they were armed with weapons like stones soda bottles and glass pieces - Photographs produced by learned SPP-I depict that hardly any member of crowd were armed with weapons except one of them holding a bottle - In none of these photographs police station or policemen are seen in vicinity - On other hand photographs produced by petitioners disclose that policemen themselves were pelting stones on crowd - That apart petitioners have produced copies of complaints lodged by dependants of deceased who died due to police firing and endorsement made thereon reveal that even though law required police to register independent FIRs in view of specific complaint made against police officers making out cognizable offences respondent police have failed to register FIRs which would go to show that a deliberate attempt is underway to cover up police excesses by implicating innocent persons at whims and caprice of police - Overzealousness of police is also evident from fact that FIRs are registered under section 307 IPC against persons killed by police themselves - In wake of counter allegations made against police and in backdrop of failure of police to register FIRs based on complaints lodged by victims possibility of false and mistaken implication cannot be ruled out - Criminal Petition is allowed
JUDGMENT
1. Petitioners in the above cases are arrested and remanded to judicial custody on the charge of being members of unlawful assembly armed with lethal weapons, attempting to set fire to North Police Station, Mangaluru and obstructing the police from discharging their duties and causing damage to public property etc., in violation of the prohibitory order imposed by the Commissioner of Police, Mangaluru, under section 144 Cr.P.C. from 9.00 p.m. on 18.12.2019 till 12.00 midnight of 20.12.2019.
The cases have been registered against the petitioners in Crime No.133/2019 in North Police Station, Mangaluru under sections 143, 147, 148, 188, 353, 332, 324, 427, 307, 120B r/w.149 of IPC, 1860 and section 2(A) of the Karnataka Prevention of Destruction & Loss of Property Act, 1981 and section 174 Cr.P.C. and Crime No.237/2019 in South Police Station, Mangaluru under sections 143, 147, 148, 353, 332, 333, 307, 427, 324, 326, 188 and 149 of IPC, 1860 and section 2(A) of the Karnataka Prevention of Destruction & Loss of Property Act, 1981.
2. The applications filed by the petitioners for their release on bail have been rejected by the I Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru.
3(i) In Criminal Petition No.776 of 2020, petitioners are arrayed as accused Nos.5, 13, 11, 14 and 10 respectively in Crime No.133/2019. Petitioner No.1 was arrested on 20.12.2019, petitioner Nos.2 and 5 were arrested on 26.12.2019 and petitioner Nos.3 and 4 were arrested on 29.12.2019.
3(ii) In Criminal Petition No.778 of 2020, petitioners are arrayed as accused Nos.1, 8, 3, 4, 6, 7, 17, 19, 20 and 9 respectively in Crime No.133/2019. Petitioner Nos.1, 4, 5 and 6 were arrested on 20.12.2019, petitioner Nos.7, 8 and 9 were arrested on 29.12.2019 and petitioner No.10 was arrested on 25.12.2019.
3(iii) In Criminal Petition No.860 of 2020, petitioners are arrayed as accused Nos.15, 16, 12, 18 and 2 in Crime No.133/2019. Petitioner Nos.1, 2 and 4 were arrested on 29.12.2019, petitioner No.3 was arrested on 26.12.2019 and petitioner No.5 was arrested on 20.12.2019.
3(iv) In Criminal Petition No.957 of 2020, petitioner is arrayed as accused No.1 in Crime No.237/2019 and was arrested on 20.12.2019.
4. Petitioners contend that they have been falsely implicated in the alleged offences without there being specific evidence of their presence at the spot of occurrence. The allegations constituting the ingredients of offences are not forthcoming in the remand application or in the complaint. Petitioners are doing different activities and business in the city of Mangaluru and some of the petitioners had come to the city for treatment and purchase of household articles and they were not members of any organization. The respondent Police themselves fired from their service weapons and killed two innocent public and injured several other individuals during the occurrence. The police have not registered even a single case on the complaints filed by the injured and relatives of the dead persons and thus the petitioners seek their release on bail.
5. Learned SPP-I appearing for respondent has filed detailed statement of objections, opposing grant of bail inter alia contending that the petitioners and other accused persons conspired to create disturbance opposing Citizenship (Amendment) Act and National Register of Citizens. ('CAA' and 'NRC' for short) and on 19.12.2019, despite prohibitory order being in force, petitioners were holding in their hands sticks, jellistones, soda bottles and glass pieces and hurled sticks and stones at the police station and were found placing pipe pieces, drums, pull carts, old iron gates across east side Azizuddin road and on the road leading to Bombay Hotel on the south side and stacking tyres and burning the same and thereby obstructed the traffic movements and throwing burning tyres at a seized lorry bearing No.GJ.12.O.8131 parked within the police station compound. The involvement of the petitioners is evident from the C
