The petitioner in the subject petition filed under

Section 439 of the Cr.P.C. seeks his enlargement on

bail, being aggrieved by the rejection of bail by the III

Additional Sessions Judge, Mysuru in terms of his order

dated 28.01.2022 in S.C.No.3/2022, arising out of

crime

No.70/2021,

registered

for

the

offences

punishable under Sections 394 and 396 of IPC and

Sections 25, 25(1B) and 27(1) of Indian Arms Act, 1959.

The petitioner is accused No.5.

2.

Heard

the

learned

counsel

Sri. Pratheep K.C., appearing for the petitioner and

Smt.K.P. Yashodha, learned High Court Government

Pleader appearing for the respondent-State.

3. Brief facts of the case leading to the filing of the

petition as borne out from the pleadings are as follows:

3

On 23.08.2021, a complaint is registered by the

complainant on the incidence of robbery of his gold

shop and also attempt for dacoity with murder, on gun

point and other alleged overt acts performed by the

unknown persons. The petitioner is hauled into

proceedings on the voluntary statement given by the co-

accused.

4. The petitioner has filed an application seeking

bail in S.C.No.3/2022 and the learned Sessions Judge

has declined to grant bail by his order dated

28.01.2022. He has also approached this Court in

Crl.P.No.3938/2022 and the same was dismissed as

withdrawn. The petitioner has filed the subject petition

on the ground that a co-accused, who is similarly

placed as that of the petitioner in the charges sheet, is

granted bail by this Court in Crl.P.No.2054/2022.

5. The order in Crl.P.No.2054/2022 reads as

follows:

4

<6.

Having

heard

the

respective

counsel and also on perusal of the material on

record,

this

petitioner

was

arrested

on

29.08.2021 and no incriminating materials

were

recovered

at

the

instance

of

this

petitioner. But, the allegation against this

petitioner

is

that,

he

came

and

made

preparation along with accused Nos.2 and 9

and he himself identified the jewelry shop to

commit the offence of dacoity and stayed in a

hotel along with other accused persons and the

fact that he was in the lodge along with other

accused persons is not in dispute since, the

witness, C.W.21, who is a Room Boy and also

the Manager of the lodge have also identified

this petitioner. But, the fact is that he was not

in the spot on the date of the incident.

However, the allegation is that, he conspired

with other accused persons and conspired at

Bombay as well as in Bengaluru along with

other accused persons. When he was not there

along with other accused at the time of

committing

the

offence

and

also

no

incriminating material recovered at the instance

5

of this petitioner, merely because he was

staying along with other accused prior to

committing the offence on 23.08.2021 cannot

be a basis to continue him in custody. In the

absence of any recovery at the instance of this

petitioner and he was also not present at the

spot, whether he has conspired with other

accused persons and made preparation to

commit dacoity prior to the incident has to be

probed during the course of trial and no further

custodial trial of the petitioner is required. The

very contention of the learned High Court

Government Pleader that he is having criminal

antecedents outside the State is not a ground

to reject this bail petition. Hence, it is a fit case

to exercise the powers under Section 439 of

Cr.P.C., subject to imposing certain conditions

to protect and safeguard the interest of the

prosecution.

In the light of the afore-extracted order, the facts

obtaining in the case at hand and on the ground of

parity, the petitioner is entitled to the benefit of

6

enlargement on bail as that of the petitioner in

Crl.P.No.2054/2022.

6. For the aforesaid reasons, I pass the following:-

ORDER

The

Petition

is

allowed.

Consequently,

the

petitioner/accused No.5 shall be released on bail in

Crime No.70/2021 of Vidyaranyapuram Police Station,

Mysuru City, for the offences punishable under Sections

394 and 396 of IPC and Sections 25, 25(1B