IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF OCTOBER 2017 BEFORE THE HON’BLE MRS.JUSTICE RATHNAKALA CRIMINAL PETITION NO.6875/2017 C/W CRIMINAL PETITION NO.6608/2017 CRIMINAL PETITION NO.7621/2017 IN CRL.P. NO.6875/2017 BETWEEN:
SANTHOSH PARASHURAM AGASIMANI S/O PARASHURAM AGED ABOUT 36 YEARS OCCUPATION: SECOND DIVISION ASSISTANT IN SUB-TREASURY AT HANAGAL RESIDING AT NO.454, MARKET ROAD ADURU VILLAGE, HANGAL TALUK HAVERI DISTRICT – 581 1010. …PETITIONER (BY SRI HASHMATH PASHA, ADV.) AND:
STATE OF KARNATAKA BY MALLESHWARAM POLICE BANGALORE – 560 003.
NOW UNDER INVESTIGATION BY C.I.D. POLICE, BANGALORE CITY. (REPRESENTED BY LEARNED SPECIAL PUBLIC PROSECUTOR) ...RESPONDENT (BY SRI ASHOK N.NAIK, SPL.PP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM POLICE STATION, BANGALORE NOW PENDING IN SPL.C.C. NO.417/2016 ON THE FILE OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL COURT UNDER KARNATAKA CONTROL OF ORGANISED CRIMES ACT, 2000, BANGALORE CITY FOR THE OFFENCES P/U/S 411, 454, 457, 380, 381, 461, 166, 120(B) AND 201 R/W 109 OF IPC AND RULE 115 AND 23 OF KARNATAKA EDUCATION ACT AND SEC.13(1)(d) AND 13(2) OF PREVENTION OF CORRUPTION ACT AND SEC.3(1)(ii), 3(2), 3(4) AND 3(5) OF KARNATAKA CONTROL OF ORGANISED CRIME ACT, 2000.
IN CRL.P. NO.6608/2017 BETWEEN:
MANJUNATH N.
SON OF NANJUNDAIAH AGED ABOUT 50 YEARS RESIDING AT NO.23, MATHANILAYA 2ND CROSS, ADARSHA NAGAR NAGARBHAVI 1ST STAGE VIJAYANAGAR BANGALORE – 560 040. …PETITIONER (BY SRI MUNIYAPPA, ADV.) AND:
1. STATION HOUSE OFFICER MALLESHWARAM SUB-DIVISION MALLESHWARAM POLICE STATION BENGALURU – 560 003 STATE OF KARNATAKA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA 2. PRE UNIVERSITY EDUCATION BOARD 18TH CROSS MALLESHWARAM BANGALORE – 560 003 BY ITS JOINT DIRECTOR 3. DEPUTY SUPERINTENDENT OF POLICE CRIMINAL INVESTIGATION DEPARTMENT OFFICE OF THE C.I.D., PALACE ROAD BANGALORE – 560 001. …RESPONDENTS (BY SRI ASHOK N.NAIK, SPL.PP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM POLICE STATION, BENGALURU CITY AND SPL.C.C. NO.417/2016 PENDING ON THE FILE OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, FOR THE OFFENCES P/U/S 3(2), 3(5) OF KARNATAKA CONTROL OF ORGANIZED CRIMES ACT (KCOCA ACT) AND SEC.120(B), 454, 457, 380, 201 R/W 109 OF IPC AND SEC.115, 23 OF KARNATAKA EDUCATION ACT.
IN CRL.P. NO.7621/2017 BETWEEN:
SHIVAKUMARAIAH @ GURUJI AGED ABOUT 66 YRS S/O LATE CHANNAPPA R/AT KAGGERE VILLAGE ERKASANDRA POST CHELLUR HOBLI GUBBI TALUK TUMKUR DISTRICT – 572 216. PRESENT ADDRESS NO.72, RAMAKRISHNA NAGAR NANDINI LAYOUT BENGALURU – 96. …PETITIONER (BY SRI R.P.CHANDRASHEKAR, ADV.) AND:
THE STATE OF KARNATAKA BY CID POLICE (MALLESHWARAM P.S.) BENGALURU REP. BY SPL. PUBLIC PROSECUTOR BENGALURU – 560 001. …RESPONDENT (BY SRI ASHOK N.NAIK, SPL.PP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM POLICE STATION, BANGALORE NOW PENDING IN SPL.C.C. NO.417/2016 ON THE FILE OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL COURT UNDER KARNATAKA CONTROL OF ORGANISED CRIMES ACT, 2000, BANGALORE CITY FOR THE OFFENCES P/U/S 411, 454, 457, 380, 381, 461, 166, 120(B) AND 201 R/W 109 OF IPC AND RULE 115 AND 23(iii) OF KARNATAKA EDUCATION ACT AND SEC.13(1)(d) AND 13(2) OF PREVENTION OF CORRUPTION ACT AND SEC.3(1)(ii), 3(2), 3(4) AND 3(5) OF KARNATAKA CONTROL OF ORGANISED CRIME ACT, 2000.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned Counsels appearing for the petitioners/accused and the learned Special Public Prosecutor for the respondent-State.
2. All the three petitions are filed under Section 439 of Cr.P.C. Totally 18 accused persons are charge sheeted by the respondent-Investigating Officer. Petitioner of Criminal Petition No.6608/17 is arraigned as accused No.6, petitioner of Criminal Petition No.6875/17 is accused No.4 and the petitioner of Criminal Petition No.7621/2017 is accused No.2 in the charge sheet.
3. The allegation is in respect of the offences under sections 411, 454, 457, 380, 381, 461, 166, 120-
B, 201 r/w section 199 of IPC, sections 115, 23 of Karnataka Education Act, 1983, sections 13(1)(d), 13(2) of Prevention of Corruption Act, 3(1)(ii), 3(2), 3(4), 3(5) of Karnataka Control of Organized Crime Act, 2000 (‘KCOCA’ for short).
4. The petitioner of Crl.P.No.7621/2017 is before this court for the first time. For other two petitioners, it is their second petition on fresh grounds before this Court. Their previous petitions were dismissed by the order of this Court in Crl.P.No.5995/2016 dated 23.11.2016 and connected case on merits.
5. Regarding Criminal Petition No.7621/2017: The petitioner is arraigned as accused No.2 in Crime No.37/2016 registered by the respondent-Police in respect of the offences under Sections 3(1)(ii), 3(4) and 3(5) of the KCOCA and Sections 120B, 454, 457, 380, 201 and 109 of IPC r/w Sections 115 and 23 of the Karnataka Education Act, 1983.
6. The allegation in its nutshell is, he was a Teacher discharged from service on the allegation of leaking question papers in connivance with his nephew/accused No.1 and accused No.3. He organized a Syndicate and used to collect illegal money by assuring the candidates to procure the question papers beforehand pertaining to Second PUC, Teachers’ Training and KPSC Examination, etc. For the last ten years, he is engaged in similar offences and is a member of the Syndicate engaged in organized crimes. He contacted the fourth accused, who works as a Second Division Assistant in Sub-Treasury, Hanagal and induced him to procure the question papers for consideration. After the third accused procured the questions papers pertaining to Second PUC Science paper, he contacted the students and conspired to sell the question papers for Rs.10,000/- each. The fact that the Chemistry question paper was leaked came to be published in the newspapers and the re-examination was scheduled to be held on 31.3.2016. Still he obtained the Kannada question paper on 28.3.2016 from the third accused and facilitated the candidates to study the question paper and obtained Rs.90,000/- from the parent of the candidate. On coming to know the registration of the case, he destroyed the question papers so procured and the mobile phone used for commission of offence. Thus, he has toppled the system and put lakhs of merit students’ career under jeopardy, etc.
7. Learned Counsel appearing for the petitioner Sri.R.P.Chandrashekar submits, in fact, it is not the case of the prosecution that he directly participated in theft of the question papers that is alleged to have occurred at Sub-Treasury, Hanagal on three different dates. The invoking of KCOCA in respect of this petitioner is not legal. Accused Nos.5, 9, 10 to 18 are enlarged on bail. He withdrew his previous petition filed during the crime stage seeking liberty to approach the Court afresh since charge sheet came to be filed at that time. He is in custody since 3.5.2016, undertakes to abide by any condition that may be imposed on him.
8. It is the common submission on behalf of the petitioners of Criminal Petition Nos.6608/2017 and 6875/2017 that though the previous similar petitions filed by them were rejected on merits, now they are seeking consideration of their prayer on fresh grounds i.e., subsequently additional charge sheet is filed and the investigation is now complete; having regard to the fact that they are in custody for 18 months and there are 17 accused persons, it is unlikely that the case may reach its logical end in a near date and similarly placed accused Nos.9 and 10 were enlarged on bail by the Special Court and the said order till date is not disturbed.
9. Sri.Ashok N.Naik, learned Special Public Prosecutor in his reply submission pertaining to Criminal Petition No.7621/2017 submits, the petitioner and his associates are continuously indulging in unlawful activities of leakage of question papers for past ten years. His associates continued to aid him directly or indirectly in the commission of similar nature of crime over years. In many cases, the petitioner and his associates are common accused persons, thus, they are operating as an Organized Syndicate over the years. Hence, the provisions of KCOCA is invoked against him. During the course of investigation, his house was searched. Copies of OMR sheets along with question papers of Ministerial Staff Examination conducted by KPSC and five cheques in his name for an amount of Rs.19,95,000/- along with competitive examination study materials were recovered. The provisions of KCOCA are in par with the provisions of Maharashtra Control of Organized Crime Act, 1999. The constitutionality of the above Maharashtra Control of Organized Crime Act, 1999 is upheld by the Apex Court. The alleged acts of this petitioner fall squarely within the ambit of ‘unlawful means’ as required in ‘Organized Crime’. As per Section 22(4) of KCOCA, he is not entitled for bail. The bail applications moved by the similarly placed co-accused is rejected by this Court. The quantum of sentence is not the sole criteria. The seriousness, gravity, the act of accused persons, effect upon student community and State’s interest is also paramount. Hence, is not entitled for bail.
Regarding Criminal Petition No.6608/2017, learned Spl.P.P. submits that, subsequent to registration of the crime, the P.U.Board re-scheduled Chemistry examination on 31.3.2016, which was earlier scheduled to be held on 21.3.2016. Again Chemistry question papers of the re-scheduled examination also leaked and another crime was registered on 31.3.2016. After considering the report submitted by the Investigating Officer and the materials collected thereon, the Additional General of Police, CID, by exercising power under Section 24(1)(a) of the KCOCA, invoked Section 3 of the KCOCA, being convinced that the main accused have formed an “organized crime syndicate” continuously since 2008. Accused No.6 is an LIC agent and a Physical Education Teacher. He conspired with accused No.1, arranged for the prospective beneficiaries for providing them the leaked question paper, took the beneficiaries in his car to various places to get the leaked question papers answered by professional Lecturers a day before the respective examination of a particular subject. He is in contact with accused Nos.1 and 2 and he continuously engaged in question paper leakage. He has received Rs.5 lakhs on 12.3.2016 and Rs.8 lakhs on 15.3.2016 from accused No.10 Narayan and deposited the amount in the account of one Rangadhamaiah. The manner in which the petitioner has aided, abetted and acted on behalf of the organized crime syndicate falls within the ambit of ‘unlawful means’.
So far as Crl.P.No.6875/2017 of accused No.4 is concerned, the submission of learned Spl.PP is that, in furtherance of the conspiracy, the petitioner, who is a Second Division Assistant at Hanagal Sub-Treasury and accused No.1 conspiring with accused No.4 gained access to the strong room of the Sub-Treasury, opened the question paper bundles and took the photographs of the same, later, got printout copies of the question papers using Laptop and with the help of accused No.6/Manjunath, the copies were distributed and allowed to be taken down by the co-conspirators for several lakhs of rupees. He has facilitated accused No.1 in gaining access to the strong room of the Sub-Treasury and taking the photocopy of the question papers stealthily. He along with accused Nos.1, 2 and 3 is involved in identical cases of question paper leakage. During the investigation, his complicity in the offence came to light. He had connived with accused No.1 in gaining access to the question papers of some other examination from the Treasury in the past also. He was procured under body warrant in Crime No.56/2013 registered by the Tumkur New Extension Police Station. He has abused his position as a public servant. During the course of investigation, Rs.3 lakhs was recovered under mahazar from his possession, which he had received from sale of the leaked question papers. His role falls within the definition of ‘unlawful means’ as required in organized crimes. He is an influential person and capable of tampering the prosecution case and hampering the trial. In the matters of co-accused, who are granted bail by this Court, an SLP is preferred before the Apex Court and same is pending.
Learned Spl.P.P. continues to submit that, petitioners herein cannot take the benefit of parity along with the co-accused, who are enlarged on bail. Placing reliance on the following judgments, Virupakshappa Gouda and Another –vs- State of Karnataka and Another reported in (2017) 5 SCC 406, The State of Bihar and Another –vs- Amit Kumar @ Bachcha Rai reported in 2017 AIAR (Criminal) 632, The State of Maharashtra –vs- Ritesh Appeal (crl.) 297 of 2001 Date of Judgment 15/3/2001 (Supreme Court) and Chenna Boyanna Krishna Yadav –vs- State of Maharashtra and Another reported in (2007) 1 SCC 242 he submits, having regard to the nature of accusation and the severity of punishment, since offence alleged under the KCOCA, same is punishable upto imprisonment for life. In an identical situation about the leakage of question papers, the Apex Court in Amit Kumar’s case (supra) observed that, usually socio- economic offence has deep rooted conspiracies affecting the moral fiber of the society and causing irreparable harm and needs to be considered seriously. The appeal preferred against the order of the High Court in enlarging the accused on bail was set aside therein. Since this Court has already rejected the bail applications of similarly situated accused persons, these petitions cannot be re-visited and there is no change of circumstance for the petitioners of Crl.P.No.6875/2017 and Crl.P.No.6608/2017.
Learned Spl.PP. continues to submit that this is the first petition wherein the prayer of petitioner of Crl.P.No.7621/2017 is taken for consideration on its merits. In view of the fact that the bail applications moved by the co-accused Nos.1, 3 and 4 against whom KCOCA is invoked are rejected vide considered order of this Court, he is not entitled for bail.
10. With the above rival submissions, perused the charge sheet material. It is a fact that, KCOCA is not invoked against the co-accused, who are on bail. So far the bail granted to the co-accused by the Sessions Court/this Court is not disturbed. It is the trite, wrong incarceration by itself is not a ground to enlarge the accused on bail, if there is incriminating evidence from the charge sheet papers.
11. So far the petitioner of Crl.P.No.7621/2017 is concerned, he is a senior citizen. Learned Counsel for the petitioner submits that, the State had proposed amendment to the KCOCA to make the Act applicable for terrorist activities and the matter is pending before the President of India to be enacted as a statute. Even otherwise, there is no direct incriminating material connecting him to the incident of theft of question paper from Sub-Treasury, Hanagal. It is not the allegation of the prosecution that he directly gained access to the Treasury and stole the question papers. Section 23 of the KCOCA contemplates statutory presumption in respect of the offence under Section 3 of the said Act and Section 22(4)(a) enjoins rider for release of an accused charge sheeted under the Act.
12. In (2007) 1 SCC 242 - Chenna Boyanna Krishna Yadav –vs- State of Maharashtra and Another in respect of the alleged offence under Maharashtra Control of Organised Crime Act, 1999, the Apex Court considered the phrase “reasonable grounds” enunciated at Section 21(4) of the said Act, which is analogue with sub-Section (4) of Section 22 of KCOCA and observed at para-16 thus:
“16. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the appellant has committed offences under Section 3(2) or Section 24 of MCOCA. What is to be seen is whether there is a reasonable ground for believing that the appellant is not guilty of the two offences, he has been charged with, and further that he is not likely to commit an offence under MCOCA while on bail. As noted above, the circumstance which has weighed with the High Court to conclude that the appellant had the knowledge of the Organised Crime Syndicate of Telgi, printing fake stamps etc. and these were being sold under the protection of the appellant and hence he had abetted an organised crime, is the alleged conversation between him and Telgi in January, 1998, after the kidnapping incident. In our view, the alleged conversation may show appellant's acquaintance with Telgi but may not per se be sufficient to prove appellant's direct role with the commission of an organized crime by Telgi, to bring home an offence of abetment in the commission of organized crime falling within the ambit of Section 3(2) of MCOCA and/or that he had rendered any help or support in the commission of an organized crime whether before or after the commission of such offence by a member of an organized crime syndicate or had abstained from taking lawful measures under MCOCA, thus, falling within the purview of Section 24 of MCOCA. It is true that when the gravity of the offence alleged is severe, mere period of incarceration or the fact that the trial is not likely to be concluded in the near future either by itself or conjointly may not entitle the accused to be enlarged on bail. Nevertheless, both these factors may also be taken into consideration while deciding the question of grant of bail”.
13. As per the submission at the Bar that he is acquitted of the similar charges in earlier cases and at this stage, hence, it is too premature to hold that he is guilty of the offence under the provisions of KCOCA.
14. So far the prayers of petitioners of Crl.P.Nos.6608/2017 and 7621/2017 are concerned, the three fresh grounds urged by them are that, additional charge sheet was filed subsequent to rejection of their bail petitions and except the present case, no other case of similar nature is pending against them. More than 200 witnesses are cited in the charge sheet. In that view of the matter, it cannot be said that sub-section 4(b) and Section 22 of KCOCA is a bar for them.
15. The Apex Court in the matter of Lt.Col.Prasad Shrikant Purohit –vs- State of Maharashtra reported in 2017 SCC OnLine SC 962 at paragraphs-24 and 25 observed thus:
“24. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
25. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. 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”.
16. In the light of the above, without expressing any opinion about merits or de-merits of the prosecution case, it is in the interest of justice to enlarge the petitioners on bail. Hence, all the petitions are allowed. The petitioners are enlarged on bail in respect of Crime No.37/2016 registered by the respondent/Police, subject to the following conditions:
(i) Each of them shall execute self bond for a sum of Rs.2,00,000/- with two local sureties for the likesum to the satisfaction of the concerned Court.
The sureties shall furnish to the Court the original title deeds of their immovable property and their Identity Cards/Aadhaar Cards for perusal. They must not have the history of offering surety in criminal cases.
(ii) They shall attend the Court regularly on all hearing dates;
(iii) They shall not indulge in any illegal activities.
(iv) They shall not leave the territorial jurisdiction of the Special Court without prior permission of the concerned Court and (v) They shall not threaten the prosecution witnesses.
Sd/- JUDGE KNM/Dvr: