IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.4415/2018 BETWEEN :
Miss. Anuradha Baliga D/o Ramachandra Baliga Aged about 46 years “LAKSHMI KUNJ” Near TVS Kala Kunj Kodial Bail-575 003, Mangaluru.
… Petitioner (By Sri N.Ravindranath Kamath, Advocate) AND :
1. Sri Mangalpady Naresh Shenoy S/o late Namdev Shenoy Aged about 40 years Residing at D.No.13-10-1279/2 Dhanvantari Nagar, V.T. Road, Mangalore-575 001.
2. State of Karnataka By Barke Police Station Represented by its Police Inspector Barke, Mangaluru-575 003.
… Respondents (By Sri Aruna Shyam M., Advocate for R1; Sri M.Divakar Maddur, HCGP for R2) This Criminal Petition is filed under Section 439(2) of Cr.P.C praying to cancel the bail granted to the 1st respondent in Criminal Petition No.6189/2016 dated 15.09.2016 by this Hon’ble Court for violation of the condition imposed by the trial Court in the said order and the 1st respondent may be ordered to be taken into custody and keep in detain till the conclusion of the trial in the above matter.
This Criminal Petition having been heard and reserved on 14.03.2019 coming on for pronouncement of orders this day, the Court made the following:-
O R D E R The present petition has been filed by the complainant under Section 439(2) of Cr.P.C. praying this Court to cancel the bail granted by this Court to accused No.1 in Criminal Petition No.6189/2016, dated 15.9.2016.
2. I have heard Sri N.Ravindranath Kamath, learned counsel appearing for the petitioner; Sri Aruna Shyam for the first respondent-accused No.1 and Sri.Divakar Maddur, learned HCGP for the second respondent-State.
3. The case of the complainant in brief is that father of the complainant received information from her neighbour stating that on 21.3.2016 when deceased was proceeding on his two wheeler to go to Sri Venkataramana Temple, two unknown persons came on a scooter and assaulted the deceased with lethal weapons. Immediately the complainant went along with her father to the spot where they found the deceased lying in a pool of blood. Immediately, they called ambulance and shifted the deceased to the KMC Hospital, where the doctor declared the deceased was brought dead. On the basis of the complaint, a case has been registered.
4. During the course of investigation, accused No.1 was apprehended and thereafter he applied for bail. After considering the objections filed by the State by the order dated 15.9.2016 this Court allowed the petition filed by accused No.1 in Criminal Petition No.6189/2016 and enlarged him on bail by imposing ten conditions.
Now it is the contention of the learned counsel for the complainant-petitioner that there is violation of the bail condition by accused No.1. As such, she has filed the present petition.
5. It is submitted by the learned counsel for the complainant-petitioner that there is a clear violation of bail condition (i). He further submitted that accused No.1, the first respondent herein has deliberately violated the condition and he has taken part in the activities of Sri Venkataramana Temple, Car Street, Mangaluru. He further submitted that CCTV footage clearly goes to show that accused No.1 has participated as a volunteer. He has knocked out the money from the said temple and even a representation has also been made to the Commissioner of Police bringing to his notice about the violation of such condition by accused No.1. He further submitted that accused No.1 is a habitual offender and the application given by him for relaxation of condition in Criminal Petition No.6917/2017 was rejected by this Court by order dated 11.10.2017. Accused No.1, the first respondent herein has given supari to the accused persons to weed out bigwigs. Now by violating the condition, he is actively participating in the administration of the temple though a restriction has been imposed by this Court while releasing him on bail. On these grounds, he prayed to allow the petition by cancelling the bail granted to the first respondent- accused No.1.
6. Per contra, the learned counsel appearing for the first respondent-accused No.1 vehemently argued and submitted that the petition itself is not maintainable since the Government has appointed Sri Ravindranath Kamath as a Special PP only to conduct the case. But now he has filed an application on behalf of the complainant without there being any vakalat only on the basis of the memo of appearance. Complainant is not in custody to file a memo of appearance. No affidavit has been filed on behalf of the complainant. The State has appointed him as a Special PP to conduct fairly and to have a fair trial. But now the learned counsel has taken it as his personal by stepping into the shoes of the complainant which is not advisable. He further submitted that the duty of the Special PP or an advocate is to assist the Court to ascertain the truth from the facts and circumstances of the case and he should not only venture for the purpose of convicting the accused. He must be open, fair, clear to the Court by assisting the Court to arrive at a proper conclusion. Instead of doing so, he is filing the applications one after another and thereby the trial before the trial Court is being hampered. He further submitted that even against the rejection of earlier applications, the complainant has approached the Hon’ble Apex Court and they have been dismissed. He further submitted that first respondent-accused No.1 has not violated any of the conditions imposed by this Court while releasing him on bail by its order dated 15.9.2016. Condition (i) has been imposed on the first respondent specifically directing that he shall keep himself away from all the activities and affairs of Sri Venkataramana Temple and from the affairs and activities of all committees attached to the said temple till the conclusion of the trial. But subsequently, when the first respondent-accused No.1 approached this Court for modifying the bail conditions, this Court by the order dated 11.10.2017 passed in Criminal Petition No.6917/2017 has made it clear that there is no prohibition on him by the impugned order from offering prayer as a devotee in the temple and mutt. He is barred to participate in the activities and affairs of the committees attached to the temple. He further submitted that accused No.1 is neither trustee nor holding any post, he only participated in jatra mahotsava as a volunteer. Even the list prepared is not the present list. Only on the basis of previous list it has been alleged that he is participating in the temple activities. Temple authorities have given the letter stating as to under what circumstances the said pamphlets have been printed. He further submitted that a letter has been given to delete the name of accused No.1 from the volunteers’ list and even subsequently he has not participated in jatra mahotsava. He further submitted that there are no complaints by any other persons except the complainant. Petitioner has not violated any of the conditions. He further submitted that after filing of the charge sheet two years have been lapsed but the charge has not been framed and the trial has not yet commenced. He further submitted that as to how and in what manner the participation of accused No.1 as a volunteer in distribution of the food is affecting the trial is not forthcoming in the petition. The complainant-petitioner has not made out any good grounds to cancel the bail. On these grounds, he prayed to dismiss the petition.
7. The learned High Court Government Pleader submitted that by looking into the facts and circumstances of the case, suitable orders may be passed.
8. I Have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. What are the factors to be kept in mind while considering the bail application relating to heinous offences have been indicated by the Hon’ble Apex Court in the case of Prasanta Kumar Sarkar Vs. Ashis Chaterjee & another, reported in (2010)14 SCC 496, wherein by relying on its earlier decisions in the case of State of U.P. Vs. Amarmani Tripathi, reported in (2005)8 SCC 21 and in the case of Ram Govind Upadhyay Vs. Sudarshan Singh reported in (2002)3 SCC 598, the Hon’ble Apex Court has indicated the following factors to be borne in mind while considering the bail application:-
i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
ii) nature and gravity of the accusation;
iii) severity of the punishment in the event of conviction;
iv) danger of the accused absconding or fleeing, if released on bail;
v) character, behaviour, means, position and standing of the accused;
vi) likelihood of the offence being repeated;
vii) reasonable apprehension of the witnesses being influenced; and viii) danger, of course, of justice being thwarted by grant of bail.
10. The Hon’ble Apex Court in the case of Dolat Ram & others Vs. State of Haryana, reported in (1995)1 SCC 349 has discussed in detail about the cancellation of bail already granted. It is further observed that if already bail has been granted, it has to be considered and dealt with on different basis. It is further held that very cogent and overwhelming circumstances are necessary for directing the cancellation of bail already granted. This proposition of law has also been subsequently followed by the Hon’ble Apex Court in the case of Subhendu Mishra Vs. Subrat Kumar Mishra & another, reported in AIR 1999 SC 3026 and in the case of Samarendra Nath Bhattacharjee Vs. State of West Bengal & another, reported in AIR 2004 SC 4207. In Dolat Ram’s Case (cited supra) at paragraph-4 it is held as under:-
“4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.”
11. Keeping in view the aforesaid proposition of law, let me consider the contention taken up by the learned counsel appearing for the parties. It is the specific contention of the complainant-petitioner that there is violation of condition (i) of the order dated 15.9.2016 passed in Criminal Petition No.6189/2016, whereas it is the specific contention of accused No.1-first respondent that there is no violation of such condition. The condition (i) reads as under:-
“(i) Petitioner shall keep himself away from all the activities and affairs of Shri Venkataramana Temple, Car Street, Mangaluru and Kashimutt, Mangaluru, and from the affairs and activities of all the committees attached to the said temple till conclusion of the trial of the case.”
12. Subsequently accused No.1 has approached this Court in Criminal Petition No.48/2017 for relaxing or modifying the bail condition (f) of the order dated 15.9.2016 passed in Criminal Petition No.6189/2016. This Court by the order dated 24.1.2017 relaxed condition (f). Subsequently, again he approached this Court in Criminal Petition No.6917/2017 for modification of condition (i) of the order dated 15.9.2016 passed in Criminal Petition No.6189/2016. This Court while rejecting Criminal Petition No.6917/2017 has observed that there is no prohibition on accused No.1 by the impugned order from offering prayer as a devotee in the temple and mutt. He is only conditioned from keeping himself away from the activities and affairs of the committees attached to the temple. If all these orders are taken into consideration, it makes clear that respondent No.1-accused No.1 must keep himself away from the activities and affairs of the committees attached to the temple. Though it is contended by the learned counsel for the complainant-petitioner that in the list of volunteers the name of the accused is appearing and even CCTV footage shows that he has participated as a volunteer, while distribution of food, the letters given to the temple authorities have also been produced by respondent No.1 requesting to delete the name of respondent No.1 from the list of volunteers and under what circumstances his name is appearing in the said list has been clarified. Under the said facts an circumstances, merely because the name of respondent No.1 is appearing in the list of volunteers and he participated in distribution of food that does not mean that he is taking active participation in the affairs of the committees attached to the temple. The complainant- petitioner has not produced any material in order to substantiate the said fact that respondent No.1 is managing the activities of all the committees attached to the said temple. In that light, the submission made by the petitioner-complainant is not acceptable.
13. Admittedly, respondent No.1-accused No.1 has approached this Court in Criminal Petition No.6189/2016 for grant of bail in Crime No.35/2016 of Barke Police Station for the offence punishable under Section 302 r/w. Section 34 of IPC and other offences. The conditions are imposed by the Court with an object that there must be a fair trial and the accused should not tamper the prosecution evidence and there should not be any threat or interference by the accused in discharging the justice and ascertaining the truth. From this angle if it is looked into, nowhere it is specifically stated that how and in what manner the said activities of respondent No.1- accused No.1 are influencing the case in dispensation of justice. If all the conditions are glanced, it indicates that it is for the purpose of the said case all those conditions have been imposed. On going through the submissions of the complainant-petitioner, I am of the considered opinion that no cogent and overwhelming circumstances are brought on record so as to consider the contentions. In that light, the complainant-petitioner has not made out any case so as to cancel the bail granted to the first respondent-accused No.1.
Taking into consideration of the aforesaid facts and circumstances, I am of the considered opinion that the petitioner has not made out any case to cancel the bail by the order dated 15.9.2016 passed by this Court in Criminal Petition No.6189/2016. Hence, the petition is liable to be dismissed and accordingly, the same is dismissed.
Sd/- JUDGE *ck/-