IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.8787 /2018 C/W CRIMINAL PETITION NO.687/2019 In Crl.Petition No.8787/2018:
Between:
1. Sri Jayarama D S/o Belliappa Gowda Aged about 58 years R/at Derappajjanamane House, Nalkuru Village, Sullia Taluk Dakshina Kannada Pin 574218 2. Smt. K Pushpavathi W/o K Vasantha Aged about 39 years, R/o Konekana Mane Nadugallu Post, Guttigaru Sullia Taluk D.K. District Pin 574218 ...Petitioners (By Sri. Rahul Rai K. Adv., for Sri Aruna Shyam, M., Adv.) And:
1. State of Karnataka, Through Subramanaya Police Station, D.K.
Represented by Public Prosecutor, High Court Building, Bengaluru 560 001.
2. Sri D.H. Karunakara S/o Late Honnappa Gowda Aged about 52 years, R/at Derappajjanamane House, Nalkuru Village, Sullia Taluk, Dakshina Kannada Pin 570 026 ...Respondents (By Smt. Namitha Mahesh B.G., HCGP for R.1) (By Sri S Shankarappa & Associates Adv., For R.2) This Criminal Petition is filed under Section 439(2) of Cr.P.C. praying to cancel the bail granted to respondent No.2 by this Court vide order dated 22.10.2018 in Crl.P.No.4931/2018 for the offences punishable under Sections, 449,302,392 and 201 r/w Section 37 of IPC in connection with crime NO,82/2016 registered by Subramanya Police Station, D.K. Consequently direct the trial court to commit the 2nd respondent in to custody forthwith.
IN CRL.PETITION NO.687/2019:
Between:
The State of Karnataka By Subramanya Police Station Rep. by State Public Prosecutor, High Court Building, Bengaluru-1.
….. Petitioner (By Smt. Namitha Mahesh B.G., HCGP) AND Sri D.H. Karunakara S/o Late Honnappa Gowda Aged about 53 years, R/at Derappajjanamane House, Nalkuru Village,Sullia Taluk, Dakshina Kannada Pin 575 001 … Respondent (By Sri. S Shankarappa & Associates, Adv.) This Criminal Petition is filed under Section 439(2) of Cr.P.C. by the S.P.P. to cancel the bail order dated 22.10.2018 passed by the High Court of Karnataka in Crl.P.No.4931/2018 in Cr.No.82/2016 of Subramanaya Police Station, D.K., for the offences punishable under Sections 449,302,392 and 201 r/w Section 37 of IPC and direct that the accused/respondent be arrested and committed to custody.
These Criminal Petitions coming on for Orders, this day, the Court made the following:
ORDER Crl. Petition No.8787/2018 has been filed by the original complainant-CW1 in Cr.No.82/2016 and Crl. Petition No.687/2010 has been filed by the State for cancellation of bail granted to respondent No.2 (accused No.1) by order dated 22.10.2018 in Crl.P.No.4931/2018 for the offences punishable under Sections 449, 302, 392 and 201 r/w Sections 37 of IPC.
2. I have heard learned counsel appearing for the petitioners/complainant in Crl.P.No.8787/2018 and learned HCGP for petitioner-State in Crl.P.No.687/2019 and also learned counsel appearing for the respondent.
3. It is the contention of the learned counsel for the petitioners that after release of the respondent No.2/accused in Crl.P.No.4931/2018, on 31.10.2018, along with his friends came near the house of the complainant and threatened the witnesses not to give evidence against the accused. If the witnesses are threatened, then the trial is going to be affected and it will also cause agony amongst the witnesses and the complainant and there will be hurdle in smooth trial of the case. He has also submitted that the accused along with his friends have brought the car and threatened the complainant and other witnesses and pressurizing the complainant not to depose against him in the case registered in Cr.No.82/2016. If that is so, the act of the accused threatening the witnesses and tampering the prosecution evidence and under such circumstances, if the bail granted by this Court is not cancelled, it amounts to interference in fair trial by intimidating the prosecution witnesses . In order to substantiate the said contention he has relied on the decision of the Apex Court in the case of Abdul Sattarbhai Mohmed Hussain Shaikh Vs. State of Gujarat & Ors. reported in 2004, Cri.LJ 2622. On all these grounds he has prayed to allow the petition.
4. Learned HCGP vehemently argued and submitted that the respondent No.2/accused No.3 instigated accused Nos.1 and 2 and a case has been registered in Cr.No.56/2018 and charge sheet has also been filed in the said case for the offences punishable under Sections 447, 427, 504, 506, 114 r/w Section 34 of IPC. She has further submitted that the owner of the car has stated that the said car has been sold and same has been used by accused Nos.1 and 2 and they are acquainted with respondent No.2 and assisting him, and on an earlier occasion a case has been registered in Cr.No.60/2005 against all these accused persons. It is only at the instigation of respondent No.2/accused No.3, accused Nos.1 and 2 went near house of the complainant and damaged the Tulsi Katte and threatened the complainant and his wife and as a result, they are under threat and there will not be a fair trial. Learned HCGP has also supported the arguments advanced by the learned counsel for the petitioners and prays for cancellation of the bail order passed by this Court inCrl.P.No.4931/2018 on 22.102018.
5. Per contra the learned counsel appearing on behalf of respondent/accused vehemently contended that this Court by order dated 22.10.2018 has released accused on bail by imposing conditions, for which he has offered surety on 29.10.2018 and he was released from jail. He has further submitted that the accused was not present along with other accused Nos.1 and 2 when they went near the house of the complainant and the respondent/accused do not know accused Nos.1 and 2 and he is not acquainted with them. He further submitted that while cancellation of the bail, this Court has to keep in mind the said power has to be sparingly used by the Court, where it has already granted bail. He further contended that when the bail has been granted, by exercising powers of the court, then sparingly the same has to be reviewed. In order to substantiate the said contention, he has relied upon the decision of the Apex Court in Abdul Basit Alia Raju and Others Vs. Mohd. Abdul Kadir Chaudhary and another, reported in (2014)10 SCC 754. He has also further submitted that the question of cancellation of bail by interfering with the discretionary powers exercised by this Court should be exercised with caution and the court has to keep in mind that grant of bail has to be exercised as if it should not be a punishment before trial. By taking into consideration the said aspect, this Court has granted bail to the accused/respondent after verifying all the materials placed on record and now without there being any material, the bail granted by this Court cannot be cancelled.
6. In order to substantiate his argument, he has relied upon the decision of the Apex court in the case of Bhagirathsinh Judeja Vs. State of Gujarat, reported in AIR 1984 SC 372. He has further contended that, if the entire contents of the complaint is perused, the presence of accused/respondent No.2 has not been mentioned and even no specific overt acts has also been attributed with regard to his presence. Under the said circumstances, he submits that only with an intention to cancel the bail the present petitions have been filed with an ulterior motive. He further submitted that there are no good grounds made out to cancel the bail. Hence he prays for dismissal of both petitions.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both parties and perused the records.
8. It is not in dispute that respondent No.2/accused was chargesheeted in Cr.No.82/2016 of Subramanya Police Station for the offence punishable under Sections 449, 302, 392 and 201 r/w Section 37 of IPC. It is also not in dispute that this Court after considering the fact that there are no eye witnesses to the alleged incident and investigation has already been completed and charge sheet has also been filed and the entire case rests only on the circumstantial evidence on which the prosecution has relied upon i.e., recovery of gold articles at the instance of the accused/respondent No.2 and that there are no other circumstances to show that the accused is involved in the said crime, has granted bail by order dated 22.10.2018 in Crl.P.No.4931/2018.
9. It is the contention of the learned counsel for the petitioners and also learned HCGP that respondent No.2/accused is threatening the witnesses along with his friends and that there will not be a fair trial. In order to substantiate the said contention, he has relied on the complaint filed in Cr.No.56/2018. I have carefully and cautiously gone through the contents of the said complaint and charge sheet materials, which are made available to the Court in this behalf. What are the criterions, which are to be looked into while considering the application for cancellation of bail, has been discussed in various decisions of the Hon’ble Apex Court in the case of Subhendu Misra Vs Subrat Kumar Mishra and another, reported in AIR 1999 SC 3026 and another case reported in AIR 2004 SC 4207 in the case of Samarendra Nath Bhattacharjee Vs. State of West Bengal and another, wherein the Bench of three judges has held that, in order to have cancellation of bail so granted, it has to be considered and dealt with on a different basis. It has been held as under:
“….. 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 the bail, broadly(illustrative and 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 with out 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.”
10. It is true that the respondent No.2/accused in the present case has been enjoying the benefit of bail granted to him, by this Court by order dated 22.10.2018 in Crl.P.No.4931/2018 and the present application for cancellation bail came to be filed by the complainant as well as prosecution alleging that there is threat to the witnesses and a complaint has been filed. In order to consider the said fact, the court has to re-look into the contents of the complaint made in Cr.No.56/2018. On a close reading of the said complaint, it clearly goes to show that, it is accused Nos.1 and 2, who are present at the time of the alleged incident. Even the complaint does not disclose any where the presence of respondent No.2/accused at the place of the incident. The only allegation which has been made in the said complaint is that at the instigation of accused No.3, accused No.1 and 2 being his friends, have threatened the said complainant and his wife and as such, a complaint has been filed.
11. On considering the said fact, when the presence of respondent No.2 was not there at the time of the incident, in my opinion there are no good grounds made out to cancel the bail; but the only ground made out is, respondent No.2/accused No.3 instigated accused Nos.1 and 2 to commit the aforesaid offence. I have carefully and cautiously gone through the decision in the case of Abdul Sattarbhai Mohmed Hussain Shaikh stated supra, quoted by the learned counsel for the petitioners, it was alleged that the original accused has given threat on a particular date and there were complaints against the said accused persons before the police and even before Human rights commission application has been filed by the petitioner in that light there were sufficient material to come to the conclusion that the accused has involved in commission of the offence. Under the said facts and circumstances the accused person, who has been released on bail has attempted to obstruct the smooth functioning of a fair trial by intimidating the prosecution witnesses. The said decision is not applicable to the facts of the present case on hand.
12. Even though, I have carefully and cautiously gone through the materials that it is not a fit case so as to exercise power under Section 439(2) of Cr.P.C. to cancel the bail. However, it is observed that this Court while granting bail has imposed the following conditions:
i) Petitioner shall execute a personal bond for Rs.2,00,000/-(Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial court.
ii) He shall not tamper with the prosecution evidence in any manner directly or indirectly.
iii) He shall attend the trial Court regularly.
iv) He shall not leave the jurisdiction of the trial Court without prior permission of the Court.
One of the conditions, which has been imposed is that: he shall not tamper with the prosecution evidence in any manner directly or indirectly.
13. The main allegation which has been made by the complainant is, by instigating his friends i.e. accused Nos.1 and 2, he is threatening the witnesses. If in future on any such complaint or any other material is placed on record, then under the said circumstances the same will be viewed very seriously and he should be dealt in accordance with law.
14. Learned counsel for respondent No.2 is also hereby intimated to instruct the concerned accused till conclusion of the trial, the accused should not indulge in any such activities and not to threaten the witnesses in the said Sessions case.
15. The observations made above shall not going to affect the trial in Cr.No.56/2018 16. Accordingly, the petitions are disposed of.
Sd/- JUDGE Psg*