1. Petitioner who has been arrayed as accused No.1 in the proceedings in S.C. No. 51/2019 is seeking to be enlarged on bail in light of his detention pursuant to the said proceedings where complaint has been registered under Sections 143, 147, 120(B), 448, 109, 114, 302, 212 r/w 149 of IPC.

2. The case that is made out by the prosecution is that on 13.01.2018, the petitioner and another accused knocked the door of the house of Smt. Afsat and she opened the door enabling entry of the petitioner and another. It is the further case of the prosecution that both the accused enquired about Iliyas and Smt. Afsat mentioned that he was sleeping in the room. It is stated that the accused entered the room of Iliyas and petitioner is stated to have stabbed Iliyas while the other accused was holding the hands of Iliyas and the said Iliyas is stated to have later succumbed to injuries and died. After the completion of investigation, charge sheet has been filed.

3. It is submitted that the petitioner is in custody since February, 2018. It is further submitted that accused No.2 has been enlarged on bail as per the order in Crl.P.No. 6705/2018 and that the petitioner is also entitled to be enlarged on bail. It is submitted that this Court by order dated 30.07.2020 passed in Crl.P.No.2417/2020 had disposed off the previous petition wherein the petitioner had sought for being enlarged on bail, while observing that the application for bail would be considered after evidence of C.Ws. 2 and 3 who are eye witnesses.

4. It is submitted that the evidence of C.Ws. 2 and 3 is completed and that there are contradictions in the evidence of C.Ws. 2 and 3. It is further submitted that in the evidence of C.W.3, it is submitted that C.W.1 has opened the door. However, the evidence of C.W.1 itself is contrary to the said assertion, as C.W.1 submits that she was at Padmavathi Hospital in Surathkal at that point of time. Accordingly, it is submitted that evidence of C.W.3(P.W.3) does not inspire confidence. It is further submitted that the evidence of eye witnesses is a matter for trial and the petitioner is entitled to be enlarged on bail.

5. Learned counsel for the prosecution opposes grant of bail and submits that the petitioner is involved in several cases and that itself would be a ground to reject the application for bail. It is further submitted that the witnesses have in fact supported the case of prosecution.

6. Heard both sides.

7. It is to be noted that the petitioner is in custody since February, 2018. Insofar as eye witnesses as stated by the prosecution, i.e., C.Ws. 2 and 3, both have been examined and their cross-examination is also completed. Insofar as the appreciation of evidence of the witnesses is concerned, it would not be appropriate to enter into such appreciation at this stage in the present proceedings. The proceedings for bail cannot be treated to be punitive in nature. The evidence of the witnesses and its appreciation is a matter best left to the trial proceedings. Insofar as the petitioner being involved in various other cases, the learned HCGP has filed a report of the Police Inspector, South Police Station, Pandeshwara, Mangalore, and it is submitted that though the petitioner was involved in about 10 cases, he has not violated any of the bail conditions in any of the matters.

8. However, learned counsel for the petitioner has pointed out that as on date, there are only 3 cases including the present case which are pending consideration. Apart from the present case i.e., Crime No. 7/2018, only two other cases which are pending trial i.e., Crime No. 423/2017 and 424/2017 both of which are triable by the Magistrate. It is further to be noticed that admittedly the petitioner has not violated any of the bail conditions in any of the matters where he has been enlarged on bail though he is stated to have been involved in several cases.

9. The contention that antecedents cannot be the sole factor for rejecting the bail petition is also to be accepted in light of the judgment of the Apex Court in the case of PRABHAKAR TEWARI VS. STATE OF U.P. AND ANOTHER - 2020 (11) SCC 648.

10. Taking note that the evidence of eye witnesses is completed; that the petitioner has been in custody since 2018; that though the petitioner is involved in number of other cases, the police report clearly makes out that the petitioner has not violated any of the bail conditions; that only two other cases are still pending against the petitioner in Crime Nos. 423/2017 and 424/2017 both of which are triable by the Magistrate and that present proceedings cannot be construed to be punitive proceedings, case is made out to enlarge the petitioner on bail.

11. Accordingly, the bail petition filed by the petitioner under Sec. 439 of Cr.P.C. is allowed and the petitioner is enlarged on bail in S.C. No. 51/2019 (Crime No.7/2018) for the offences punishable under Sections 143, 147, 120(B), 448, 109, 114, 302, 212 r/w 149 of IPC, subject to the following conditions:

"(i) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.

(ii) The petitioner shall not tamper with prosecution witnesses in any manner.

(iii) The petitioner shall not indulge in similar type of criminal activities.

(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission. (v) The petitioner shall surrender his passport before the trial Court till trial is concluded.

(vi) The petitioner shall mark his attendance on 1 st of every month between 10.00 a.m. and 5.00 p.m., before the jurisdictional police till trial is concluded."

Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail.

12. Before parting, this Court observes looking into the number of cases in which the petitioner has been involved, it would be open for the petitioner's counsel in consultation with the family members of the petitioner if they so consider, to take steps to refer the petitioner for counselling. Such observation must not be taken to be an expression as regards the petitioner's behaviour. It is made out of the concern for the petitioner so as to ensure his integration into the main stream of the society.