IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 24th DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.2448/2019 BETWEEN :
Mr. J.N.Ganesh S/o J.N.Venkobappa Aged about 39 years Residing at Door No.579 Balmuri Gajanana Temple Road Ward No.28, Hospet Town, Bellary District, Karnataka-583 132 Presently the Member of Karnataka Legislative Assembly, From Kampli Constituency, Bellary, Karnataka (By Sri B.V.Acharya, Senior Counsel for Sri M.S.Shyam Sundar, Advocate) AND :
… Petitioner 1. The State of Karnataka by Bidadi Police Station Ramanagara Taluk Ramanagara District-562 109 Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
2. Sri Anand Singh S/o B.S.Prithviraj Singh Aged about 53 years Resident of K.R.Road, Hospet, Bellary District.
(Respondent No.2 - Amended as per the Court order dated 10.04.2019) … Respondents (By Sri H.S.Chandramouli, SPP for R1; Sri Ajay Kadkol, Advocate for Sri C.V.Nagesh, Associates for R2) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.19/2019 of Bidadi Police Station, Ramanagara District, for the offences punishable under Sections 323, 324, 307, 504 and 506 of Indian Penal Code.
This Criminal Petition having been heard and reserved on 10.04.2019 coming on for pronouncement of orders this day, the Court made the following:-
O R D E R The present petition is filed by the accused under Section 439 of Cr.P.C. praying to release him on bail in Crime No.19/2019 of Bidadi Police Station, for the offences punishable under Sections 323, 324, 307, 504, 506, of IPC, pending on the file of Principal Civil Judge (Senior Division) & CJM Court, Ramanagara.
2. I have heard Sri B.V.Acharya, learned Senior Counsel appearing on behalf of Sri Shyam Sundar M.S. for the petitioner; Sri H.S.Chandramouli, learned SPP for the first respondent-State and Sri Ajay Kadkol, learned counsel for Sri C.V.Nagesh Associates appearing on behalf of the second respondent-complainant.
3. The gist of the complaint is that as per the whip of the party, complainant along with their party members went to Eagleton Resort to discuss about the forthcoming elections to Loksabha. After participation in the said discussion, on 19.1.2019 at about 1.00 a.m. the complainant along with his friends completed his dinner and thereafter he was proceeding to his room along with Mr.Ganesh-accused, the petitioner herein who is an MLA of Kampli Constituency. While so moving the petitioner- accused addressed the complainant stating that he has not properly helped him financially at the time of election. Petitioner-accused told that he is going to finish the niece of the complainant (son of the sister of the complainant) by name Sandeep. When the complainant enquired the accused-petitioner as to why he is interfering with his family affairs and talking about his family members, petitioner raised his voice and told that if the complainant is killed all would be right. He also told that he is waiting for the same. By saying so, accused-petitioner abused the complainant in filthy language and by saying that he is supporting the party leaders, took a piece of pot which was lying by the side and assaulted on his head and face. He also took a wooden stick and again assaulted on the head of the complainant and made the head of the complainant to dash against the wall. The accused was also asking for pistol to kill the complainant and thereby he was expressing that he was intending to kill the complainant. Due to the said assault, the complainant fell down and at that time also, accused assaulted on his stomach and fisted on his face by saying ‘die die’. As a result of the same, complainant sustained fracture below the eye and other contusions on chest and other parts of the body. Immediately, the Ministers by name Tukaram, Krishnamurthy, Ramappa and Tanvir Shet came and rescued the complainant. By that time, the complainant fell unconscious and immediately he was taken to Apollo Hospital, where the police came and recorded his statement and registered the case.
4. It is the submission of the learned Senior counsel Sri B.V.Acharya on behalf of the petitioner-accused that on the date of the alleged incident, admittedly all the party members were present in Eagleton Resort and after consuming alcohol they had dinner. Both accused as well as the complainant had consumed alcohol and they were moving together. When they were talking with each other, because of exchange of words, there was a scuffle between the complainant and the accused and at that time, the complainant being an aggressor tried to assault the accused. In order to defend himself, accused assaulted the complainant and as a result of the same, complainant suffered three injuries, including one fracture and two simple injuries. He further submitted that the circumstances under which the alleged incident has taken place clearly go to show that neither it is premeditated nor an intentional act. He further submitted that the petitioner has not carried any weapons and in a spur of moment he assaulted with pieces of flower pot and with a wooden stick which were lying by the side.
5. It is his further submission that there is inordinate delay in filing the complaint. The complaint itself discloses the fact that the complainant after having dinner was proceeding along with the MLAs and other Members of the Parliament and at that time the alleged incident took place. Though all were present, no complaint has been registered immediately after the incident. Complaint came to be registered only on 21.1.2019 though the alleged incident has taken place on 19.1.2019. He further submitted that immediately the hospital authorities have sent a memo to the jurisdictional police about the alleged incident and when police came to record the statement of the complainant, it was informed that the complainant was sleeping and asked them to come later. Thereafter on the next day the statement of the complainant was recorded and a case has been registered, that itself clearly goes to show that the said complaint is pre-meditated, after thought with discussion and deliberation.
6. It is his further submission that the petitioner- accused has not made any attempt to commit the murder of the complainant. All the words used in the complaint are created and concocted. Now this Court cannot evaluate the evidence and come to the final conclusion. This Court can only look into the prima facie material and pass an appropriate order. He further submitted that most of the major part of the investigation has been completed and the accused- petitioner is not required for the purpose of investigation or interrogation. As the petitioner-accused is a sitting MLA, there is no question of he being absconding and tampering with the prosecution evidence and even there is no chance of winning over the eye witnesses, who are also MLAs of various Constituencies and the petitioner- accused is also a responsible citizen. It is only question of the evidence of the complainant and the medical evidence. He further submitted that the trial may take its own time and till then it is not necessary to detain the accused-petitioner in custody. He further submitted that there is no prima facie material to show that the petitioner with an intention to cause the death, has assaulted the complainant. He further submitted that the personal liberty cannot be withheld and bail is a rule and jail is an exception. In order to substantiate his contention, he relied upon the decision in the case of Rahman Vs. The State of U.P. reported in AIR 1972 SC 110. By relying upon the decision in the case of Dr.Subhash Kashinath Mahajan Vs. The State of Maharashtra & another, reported in AIR 2018 SC 1498 he further submitted that there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity. He further submitted that right to bail cannot be denied merely because of the sentiments of the community against the accused. In order to substantiate his contention, he relied upon the decision in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012)1 SCC 40. He further submitted that the Court should not goby the hype and sensation created by the public or media. The Court must be expected to remain impervious to any pressure that may be brought upon it either from the public or media. In order to substantiate his said contention, he relied upon the decision in the case of Sandeep Kumar Bafna Vs. State of Maharashtra & another, reported in (2014)16 SCC 623. By relying upon the decision in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & others, reported in (2011) 1 SCC 694, he further submitted that the Hon’ble Apex Court has elaborately discussed as to what are the parameters the Court has to keep in mind while considering the bail application. He further submitted that the accused-petitioner cannot be sent behind the bars as a pre-conviction before the trial. He further relied upon the decision of this Court in the case of Sri Krishna Vs. State of Karnataka by CCB in Criminal Petition No.5133/2018, disposed of on 5.10.2018 and submitted that if the accused is available to face the trial, then under such circumstances, by imposing reasonable conditions, he may be released on bail. He further submitted that the petitioner is ready to abide by the conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner on bail.
7. Per contra, it is the submission of the learned SPP Sri H.S.Chandramouli for the first respondent-State that the accused-petitioner has assaulted the complainant with an intention to commit his murder. Because of the assault and fisting, the complainant has suffered grievous injuries and immediately he was shifted to the hospital. He was not in a position to give his statement and subsequently, on 21.2.2019 the statement of the complainant was recorded with explanation and a case has been registered. He further submitted that the petitioner-accused is a sitting MLA. Even though he was in custody on health ground he got admitted in the hospital and even there was material to show that he never used to be there in the said hospital. If he is released on bail, he may use his position and he may tamper with the prosecution evidence. He further submitted that the conduct of the petitioner immediately after the alleged incident has to be looked into while considering the bail application. Immediately after the incident, he escaped and absconded. Subsequently he was traced by the police in Gujarat State. In that light, there is every likelihood of he may abscond and may not be available for trial. He further submitted that the charge sheet has not yet been filed. Still the matter is under investigation. There is every likelihood of tampering the prosecution evidence by the petitioner. He further submitted that name of the petitioner-accused was included in rowdysheeter and 3 to 4 cases have been registered against him. He further submitted that the petitioner is not having any good antecedents and if he is released on bail, he may again indulge in similar type of criminal activities and he may abscond.
8. Alternatively he submitted that a limited bail may be granted to the petitioner-accused till the charge sheet is filed and after filing of the charge sheet a decision may be taken whether the accused-petitioner is entitled to be released on bail or not. On these grounds, he prayed to dismiss the petition.
9. Sri Ajay Kadkol, learned Counsel appearing on behalf of the second respondent-complainant by supporting the submissions of the learned SPP has prayed to dismiss the petition.
10. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records and the citations which have been cited by them.
11. Before going to consider the case on merits, I feel that this is an unfortunate case whereunder the people representatives who are said to be model in the society have took altercation and the alleged incident has taken place. If the persons who should be model to the society and guide the people fight in a public place, the image of prestigious institution of the State would be affected.
12. Whenever a case belonging to celebrities or the persons who are holding the profile comes before the Court it is going to be magnified, but thereby it is not going to influence the decision of the Court. At this juncture, I remember the Themis, i.e., Goddess of justice, which is blindfolded. In one hand there is a scale and in another hand it is sword that itself shows that whoever may be before the Court it is not going to influence and it is going to be weighed by putting into the scale and in whose favour there is justice, the scale will tilt in that side. The grant or refusal of bail lies within the discretion of the Court and it will be regulated largely by facts and circumstances of each particular case. The sentiments of the community and other things are not relevant and it will not influence the decision of the Court. This proposition of law has been laid down by the Hon’ble apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation (cited supra), wherein at para 40 it reads as under:-
“40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.”
13. Keeping in view the above said aspect, let me consider the case on hand. As could be seen from the contents of the complaint, the petitioner-accused and the complainant came to Eagleton Resort by virtue of whip and they participated in the said discussion and after the dinner when they were going back towards the room, the alleged incident took place. In the entire complaint, nowhere it has been stated that there was any previous animosity or ill-will as against the complainant by the accused or vice versa. Even prior to the alleged incident, there were no other altercations between them, including exchange of words. In that light, if the case is looked into, it appears that there is no premeditation or prior intention to commit the alleged incident. Even the accused-petitioner has not carried any of the deadly weapons along with him prior to the alleged incident. In that light, if the facts of the case are scrutinized, there is no intention to cause the death of the complainant by the petitioner and it reveals that the alleged incident has taken place in a scuffle in a spur of moment when they were moving towards the room after the dinner. It may be because of the reason that they have consumed alcohol prior to the dinner. Even when the alleged incident took place, the accused-petitioner assaulted the complainant by taking pieces of pot and wooden stick.
Though the complainant has sustained grievous injuries below his eye, the alleged incident has taken place in a spur of a moment and there is no premeditation. Even there is no other material to show that the complainant has entered into the affairs of the family of the accused- petitioner. Even while making a move, they were not discussing the family affairs or any other aspects. In that light, there is no concrete material placed before the Court to come to the conclusion that with an intention to take away the life of the complainant, the accused assaulted the complainant.
14. Be that as it may, even though when the alleged incident has taken place, some other MLAs who were at the place of incident, have not filed any complaint immediately after the incident though they are the eye witnesses and they have shifted the complainant to Apollo Hospital. The complaint came to be registered only on 21.1.2019 at about 11.00 a.m., though the alleged incident has taken place on 19.1.2019 at about 1.00 a.m. that itself goes to show that the said complaint has been filed after discussion and deliberation.
15. Even as could be seen from the records, the complainant has suffered three injuries, i.e., one fracture of interior wall right orbit and other two injuries are simple in nature. The injured got admitted in the hospital in the intervening night of 19th and 20th of January, 2019 and subsequently he was discharged on 4.2.2019 that itself goes to show that the injured- complainant is out of danger. The alleged offences are not punishable with death or imprisonment for life. The petitioner is present MLA. Though during the course of arguments, the learned SPP submitted that the accused- petitioner is a rowdysheeter and if he is released on bail, again he may indulge in similar type of criminal activities, it is the specific contention of the learned Senior Counsel Sri B.V.Acharya that, earlier to 2015, some cases have been registered as against the petitioner-accused and he was also a rowdysheeter, but in all those cases, the petitioner has been acquitted and after verification of the said records, the concerned Superintendent of Police has deleted the name of the petitioner-accused from the rowdysheeter. Thereafter the petitioner contested the elections and elected as MLA. Keeping in view the said facts and circumstances, now it cannot be held that the name of the petitioner-accused is found in rowdysheeter and on that ground, the bail cannot be denied to him.
16. It is the submission of the learned SPP that still the investigation is in progress and a limited bail may be granted to the petitioner-accused till the charge sheet is filed. But the said submission cannot be considered because of the reason that under Section 439 of Cr.P.C., no such interim bail can be granted, that too it is not the case of the petitioner to release him on parole. All the materials are already available, including the injury certificate, statements of the witnesses and it is an admitted fact that the injured complainant has been discharged from the hospital and he is out of danger. Only because the charge sheet is not filed and if the prosecution apprehends that the accused-petitioner may interfere with the investigation or tamper with prosecution evidence, then under such circumstances, it has every right under Section 439(2) of Cr.P.C. to apply for cancellation of bail. In that light, the submission of the learned SPP cannot be accepted.
17. Be that as it may, when once the learned SPP submitted that a limited bail may be granted till the charge sheet is filed that itself goes to show that there is no seriousness involved in the alleged crime.
18. In the light of the discussion held by me above, I feel that by imposing some stringent conditions, if the petitioner-accused is ordered to be released on bail by taking adequate security, it would meet the ends of justice.
Accordingly, the petition is allowed and accused- petitioner herein is enlarged on bail in Crime No.19/2019 of Bidadi Police Station, for the offences punishable under Sections 323, 324, 307, 504, 506, of IPC, pending on the file of Principal Civil Judge (Senior Division) & CJM Court, Ramanagara, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two Lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) He shall not tamper with the prosecution evidence directly or indirectly.
iii) He shall not interfere with the investigation or threaten the prosecution witnesses by using his position.
iv) He shall not leave the country without prior permission of the jurisdictional trial Court.
v) He shall not indulge in similar type of criminal activities till the trial is concluded.
vi) He shall mark his attendance once in fifteen days before the Police Station nearest to his residence, till the charge sheet is filed.
vii) He shall be regular in attending the trial.
Sd/- JUDGE *ck/-