IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL PETITION NO.2705/2019 BETWEEN:
SRI NIRANJAN H.K S/O KRISHNAPPA AGED ABOUT 36 YEARS R/AT NO.502, HESARAGHATTA BENGALURU NORTH BENGALURU – 560 088 ...PETITIONER (BY SRI S.BALAKRISHNAN, ADVOCATE) AND:
1. STATE OF KARNATAKA BY BANASHANKARI POLICE REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 2. SMT.KAMALA SATHYA W/O LATE DR.H.C.SATHYA AGED ABOUT 74 YEARS R/AT 419, 9TH MAIN, 24TH CROSS BANASHANKARI, 2ND STAGE BANGALORE – 560 070 ...RESPONDENTS (BY SRI DILDAR SHIRALLI, HCGP FOR R1;
MS. JAYNA KOTHARI, SENIOR COUNSEL FOR SRI ROHAN KOTHARI, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.49/2017 (S.C.NO.1068/2018) OF BANASHANKARI P.S., BANGALORE FOR THE OFFENCE P/U/S 397, 396, 302 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is seeking bail in Crime No.49/2017 of Banashankari police station which is now pending in S.C.No.1068/2018 on the file of LXVIII Additional City Civil and Sessions Judge, Bengaluru [CCH-69] for the offences punishable under Section 397, 396 and 302 of IPC.
2. The case of the prosecution in brief is as follows:
Petitioner was the tenant under deceased Dr.H.C.Sathya. There was some ill-will between petitioner and Dr.H.C.Sathya regarding payment of rent. In that background on 09.02.2017 at about 2.30 p.m., petitioner assaulted Dr.H.C.Sathya in his house with stool on his head and back. Further threatening CW.1 of life of Dr.H.C.Satya robbed cash, jewellaries and valuables from the house and fled away. Dr.H.C.Sathya succumbed to the injuries on 03.06.2017.
3. Initially, the Sessions Court had granted bail to the petitioner on 22.03.2017. On 19.05.2017, the State filed application for cancellation of bail on the ground that the petitioner is intimidating the witnesses and hampering the investigation. On hearing both sides, the learned Sessions Judge vide order dated 28.06.2017 cancelled the bail. Petitioner challenged that order before this Court in Crl.R.P.No.724/2017, wherein an interim order was granted directing the State not to precipitate the matter in arresting the petitioner. Therefore, he was not arrested though bail was cancelled.
4. Suppressing the fact of filing of Crl.R.P.No.724/2017, he sought bail before the Sessions Court which was granted on 06.07.2018. On 19.07.2018, this Court dismissed Crl.R.P.No.724/2017 and confirmed the order of cancellation of bail. By that time, the petitioner was on bail by virtue of the order of the Sessions Court which was obtained by suppressing the material facts.
5. Again the prosecution and the complainant moved the Sessions Court for cancellation of bail, which was allowed on 29.08.2018. For the second time, the Sessions Court cancelled the bail granted to the petitioner and he was arrested. Petitioner again approached this Court in Crl.P.No.7011/2018. This Court vide order dated 04.01.2019, considering the materials as well as conduct of the petitioner rejected the petition.
6. This Court further observed that petitioner has abused the process of Court and imposed him cost of Rs.10,000/- which was pre-condition for entertaining any further bail petition. Thereafter, again the petitioner moved the Sessions Court for grant of bail which came to be rejected on 26.03.2019.
7. Sri S.Balakrishnan, learned Counsel for the petitioner seeks bail again on the following grounds:
(i) CW.1 does not disclose the name of petitioner in the complaint;
(ii) CCTV footage produced are not certified in accordance with Section 65(b) and 45A of the Indian Evidence Act, 1872;
(iii) So far as conduct of the petitioner, he was in judicial custody, he does not know what all his Counsel stated in the earlier bail petitions;
(iv) No witnesses have complained of coercing or tampering the witnesses and it was only Investigating Officer’s perception; & (v) In Crl.R.P.No.724/2017 and Crl.P.No.7011/2018 liberty was reserved to the petitioner to renew his bail petitions.
(vi) Petitioner has paid cost in compliance of the order by this Court in Crl.P.No.7011/2018; & (vii) Petitioner is in judicial custody since more than six months. Hence, seeks for bail.
8. Per contra, Ms.Jayna Kothari, learned Senior Counsel appearing for Sri Rohan Kothari, learned Counsel on record for respondent No.2 opposes petition on the following grounds:
(i) Since earlier five bail petitions of the petitioner were rejected on merits, petitioner is entitled to bail only if there is any changed circumstance.
(ii) The only changed circumstance the petitioner is raising is his six months detention. Having regard to the gravity of the offences and conduct of the petitioner, his judicial custody for six months does not entitle him to seek bail at this stage.
(iii) It is not open to the petitioner to argue on merits of the case as his earlier bail petitions were considered on merits of the petition.
9. In support of her contentions, she relies upon the following judgments:
1. Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528] 2. State of T.N. v. S.A.Raja [(2005) 8 SCC 380] 3. State through C.B.I v. Amarmani Tripathi [AIR 2005 SC 3490] 4. Virupakshappa Gouda v. State of Karnataka [(2017) 5 SCC 406] 10. So far as the merits of the prosecution case, all the grounds now sought to be urged were urged in the earlier petitions. Case is based on evidence of CW.1 eyewitness and her presence was natural at the scene of occurrence which is her house. The earlier bail applications were rejected considering all the charge sheet materials and merits of the petition. Therefore, that cannot be re-agitated now.
11. Other circumstance in rejecting the bail was whether there was likelihood of the petitioner tampering the witnesses. Though, it is contended that none of the witnesses alleged tampering, the Investigating Officer submitted the report that witnesses were being tampered. The trial Court accepting that cancelled the bail. That order was confirmed by this Court in Crl.R.P.No.724/2017. The allegations are transformed into the order of this Court in Crl.R.P.No.724/2017 which has attained finality. Under such circumstances, it is not open to the petitioner to say that tampering was only the Investigating Officer’s perception.
12. The third circumstance is conduct of the accused. This Court in Crl.P.No.7011/2018 elaborately discussed and observed that the petitioner is guilty of indulging into unfair practice and abuse of process of Court. Therefore, cost of Rs.10,000/- was imposed on him. The observation of this Court in Crl.R.P.No.724/2017, that the said order does not come in the way of the petitioner renewing the bail application itself does not entitle him to seek bail unless he shows changed circumstances. Even it was observed in that order that accused can apply for bail under the changed circumstances.
13. The order of this Court in Crl.P.No.7011/2018 that if petitioner moves any further bail petition, deposit of cost of Rs.10,000/- is pre-condition was to curb the abuse of process of Court. Petitioner’s contention that thereby this Court has granted him omnibus liberty to file fresh petition is a distorted interpretation.
14. It is very unfortunate that having indulged in glaring unfair practice, it is submitted that petitioner is ignorant of what all is stated by his Counsel in his earlier petitions. That adds to the gravity of his conduct as he is making reckless allegations against his previous Counsel behind their back.
15. In the judgments relied upon by the learned Counsel for complainant-respondent No.2 , it was held that mere judicial custody of the accused does not entitle him to seek bail unless the other conditions are satisfied. The copy of the order sheet of the trial Court proceedings and the facts narrated above show that petitioner himself has contributed for the delay by filing multiple petitions and on driving prosecution to seek cancellation of bail twice. Therefore, he cannot seek benefit of that.
16. Petitioner by such multiple petitions has abused the process of Court, taxed the judicial time of the Court. Therefore, petition is dismissed with cost of Rs.25,000/- payable to the High Court Legal Services Committee within four weeks, non compliance of which shall operate as bar for seeking bail further.
Sd/- JUDGE KSR