IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.9194/2018 c/w CRIMINAL PETITION NO.9216/2018 IN CRIMINAL PETITION NO.9194/2018: BETWEEN :
1. Sri Pradeep Raja G., Aged about 32 years S/o Gururaja L.
R/o No.3, Old Madiwala Opposite to Sandya Theatre Bengaluru-560 068.
2. Sri Gayathri Devi P.S. Aged about 52 years W/o Gururaja L.
R/o No.3, Old Madiwala Opposite to Sandya Theatre Bengaluru-560 068.
(By Smt. Sheetal Soni, Advocate & Sri Koushik Raja, Advocate & Sri Gangadhara B.K., Advocate) … Petitioners AND :
1. The State of Karnataka by Women’s Police Station, Tumakuru, Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
2. Smt. Kiran Niveditha Aged about 27 years Balaji Nivas, 2nd Cross Sapthagiri Layout Tumakuru-572 101 … Respondents (By Smt. Namitha Mahesh B.G., HCGP for R1; Smt. Kiran Niveditha, Party-in-Person for R2) This Criminal Petition is filed under Section 438 R/W. Section 482 of Cr.P.C praying to set aside the order dated 05.12.2018 passed in Crl.Misc.No.322/2018 of the 1st Additional District and Sessions Judge at Tumakuru, with respect to the petitioners Nos.1 and 2 herein, vide Annexure-A and may be pleased to restore the anticipatory bail given to petitioners Nos.1 and 2 herein vide order dated 10.04.2018 produced as Annexure-D.
IN CRIMINAL PETITION NO.9216/2018: BETWEEN :
Kiran Niveditha D/o K.B. Thimmaraju Aged about 27 years Residing at Balaji Nivas Behind Saptagiri College 2nd Cross, Saptagiri Ext. Tumakuru-572 102.
… Petitioner (By Smt. Kiran Niveditha, Party-In-Person) AND :
1. The State of Karnataka by Women’s Police Station, Tumakuru, Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
2. L. Gururaja S/o H. Lakshman Aged about 62 years R/at No.3, Infront of Iyangar Bakery Near Sandya Theater Old Madivala Road, BTM Layout, Bengaluru-560 068.
3. Suresh Babu S/o Veerappa Aged about 48 years R/at No.25, EWS Colony BTM 2nd State Bangalore-560 068.
4. G. Kowshik S/o L. Gururaja Aged about 24 years R/at No.3, In front of Iyangar Bakery Near Sandya Theater Old Madivala Road, BTM. Layout, Bengaluru-560 068.
5. Jagadeesh S/o Thyagaraj Aged about 44 years R/at No.106/5-B, 1st Floor Tata Silk Form, 2nd Cross Bangalore-560 004.
… Respondents (By Smt. Namitha Mahesh B.G., HCGP for R1; Smt. Jayna Kothari, Senior Counsel for Sri Rohan Kothari and Sri Naveen Chandra V., Advocates for R2 to R5) This Criminal Petition is filed under Section 439(2) of Cr.P.C praying to cancel the bail granted to accused No.2, accused No.4, accused No.5 and accused No.6 in Crl.Misc.No.322/2018, Crime No.27/2018 of Women’s Police Station, Tumakuru, on the file of the 1st Additional District and Sessions Judge at Tumakuru, for the offences punishable under Sections 498A, 417, 418, 504, 506, 377 and 354C r/w Section 34 of Indian penal Code and Sections 3 and 4 of Dowry Prohibition Act.
These Criminal Petitions having been heard and reserved on 20.02.2019 coming on for pronouncement of orders this day, the Court made the following:-
O R D E R By the order dated 5.12.2018, the I Additional District and Sessions Court, Tumakuru in Crl.Mis.No.322/2018 by partly allowing the application filed by the complainant praying for cancellation of anticipatory bail granted by the said Court to accused Nos.1 to 6 on 10.4.2018, cancelled the bail granted in favour of accused Nos.1 and 3. Accused Nos.1 and 3, being aggrieved by the said cancellation of anticipatory bail to them, preferred Criminal Petition No.9194/2018, whereas being aggrieved by non-considering of the prayer of the complainant for cancellation of anticipatory bail granted to accused Nos.2, 4, 5 and 6, the complainant has preferred Criminal Petition No.9216/2018.
2. I have heard Smt. Sheetal Soni, learned counsel appearing for accused Nos.1 and 3-petitioners in Criminal Petition No.9194/2018; Smt.Jayna Kothari, learned Senior Counsel for accused-respondents in Criminal Petition No.9216/2018; Smt.Namitha Mahesh B.G., learned HCGP for the respondent-State and the complainant/party-in-person, the petitioner in Criminal Petition No.9216/2018.
3. It is the submission of the learned Senior Counsel that the order passed by the trial Court canceling the anticipatory bail granted in favour of accused Nos.1 and 3 is erroneous. Without considering the legal position, the trial Court has swayed away by the submissions made by the complainant and the learned Public Prosecutor. She further submitted that there is no breach of any of the conditions imposed while granting the anticipatory bail. Without any breach of the conditions by accused Nos.1 and 3, the trial Court ought not to have cancelled the bail granted to them. She further submitted that there are no allegations as against any of the accused to show that they have threatened the witnesses. It is the counsel who has uttered some words and the matter was taken to the Police Station by the complainant, where in the presence of the complainant the said complaint was closed. The said aspect which has been relied upon by the trial Court is not justifiable. She further submitted that the Investigating Officers and incharge Officers of the Police Station have filed their affidavits to the effect that all the accused persons including accused No.3 used to attend the Police Station as per the conditions and have marked their attendance. But in spite of the same, the trial Court has ventured to compare the signatures with that of vakalat and has come to a wrong conclusion that the signature found in the Register is not tallying and as such accused No.3 has not attended the Police Station. By referring to Section 73 of the Indian Evidence Act, she further submitted that the trial Court ought not to have compared the signature with its eyes and expressed its opinion. She further submitted that although there is no legal bar to a judge using bare eyes to compare the signatures without the aid of the expert, as a matter of prudence and caution, the judge hesitates to base his finding with regard to the identification of the signatures which forms the sheet-anchor of the prosecution case solely on comparison made by himself. In order to substantiate her contention, she relied upon the decision in the case of State (Delhi Administration) Vs.Pali Ram, reported in AIR 1979 SC 14. She also relied upon the decision in the case of O.Bharathan Vs. K.Sudhakaran & another, reported in AIR 1996 SC 1140. She further submitted that during the course of investigation, if the Investigating Officer has not apprehended the accused and there is no evidence to show that the witnesses have hampered the evidence though they were having best opportunity, these facts are to be considered while considering the bail application. After filing of the charge sheet usually the Court cannot cancel the bail when there is no material to show that there is tampering of the evidence. In order to substantiate her contention, she relied upon the decision in the case of Dataram Singh Vs. State of Uttar Pradesh & another, reported in AIR 2018 SC 980. She further submitted that rejection of the bail in a non- bailable offence is different from cancellation of the bail so granted. Very cogent overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Usually the Courts will not interfere with the bail granted and cancel mechanically without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to cancel the bail. In order to substantiate her contention, she relied upon the decision in the case of Dolat Ram & others Vs. State of Haryana, reported in (1995)1 SCC 349. She further submitted that a separate petition is not maintainable for the purpose of cancellation of bail. Already the Court which has passed the order becomes functuous officio to entertain a separate petition. If at all any application has to be filed, it should be filed in a same petition. The parameters which are to be taken into consideration by the Court have been discussed by the Hon’ble Apex Court and the said parameters have to be followed by the Court. In order to substantiate the said contention, she relied upon the decisions in the case of State of Haryana Vs. Jagbir Singh & another, reported in AIR 2003 SC 4377 and in the case of Rajesh Sharma & others Vs. State of U.P. & another reported in AIR 2017 SC 3869. She further submitted that the Court should not go for cancellation of the bail and such tendency of the parties has to be discouraged. She further submitted that the photographs which have been produced are only to rebut the allegations made as against the accused and they have been produced in a judicial proceeding. No prejudice or hardship has been caused and they have not been produced to defame the complainant. On these grounds, the learned Senior Counsel appearing for the respondents in Criminal Petition No.9216/2018 and the learned counsel appearing for accused Nos.1 and 3-petitioners in Criminal Petition No.9194/2018 prayed to allow the petition filed by accused Nos.1 and 3 by granting bail to them and dismiss the petition filed by the complainant.
4. Per contra, the learned HCGP vehemently argued and submitted that accused No.3 has not followed the conditions imposed while she was released on bail. She has not marked her attendance before the Police Station but the documents have been concocted to show that actually she has complied with the conditions and attended the Police Station and as and when she visited she has signed in the Register. She further submitted that she is illiterate, the signature which has been put by her is in English that itself clearly goes to show that accused No.3 has not visited the Police Station and marked her attendance. When the documents have been tampered and there is no compliance of the order of the bail, then the bail has to be cancelled. By relying upon the decision in the case of Murari lal Vs. State of Madhya Pradesh, reported in 1980(1)SCC 704, she further submitted that the Court is having every power to compare the signatures and on comparison if the Court comes to the conclusion that the signature is not that of the accused, an adverse inference can be drawn to the effect that the said accused has not attended the Police Station and there is a violation of breach of condition.
5. She further submitted that accused No.1 through his advocate threatened the complainant in the premises of the Family Court that itself amounts to nothing but tampering with the prosecution evidence. Though it is contended by the learned counsel for accused No.1 that accused No.1 is nothing to do with the act of his advocate, he was present when his advocate threatened the complainant. She further submitted that a complaint was also registered and after recording the statement of the learned advocate and the complainant the complaint came to be closed. The trial Court after considering the said facts, has rightly cancelled the bail granted to accused Nos.1 and 3. She further submitted that the trial Court was wrong in cancelling the bail granted to accused Nos.1 and 3 alone. The other accused persons were also present and only at the instigation of the accused persons, the learned counsel appearing on behalf of them has threatened the complainant. In that light, the order passed by the trial Court in not cancelling the bail to the remaining accused persons is not sustainable and requires to be interfered with by this Court in so far as the said aspect is concerned. She further submitted that if Court finds that there are grounds of cancellation of bail, the Court is having every right to cancel the bail. In order to substantiate her said contention, she relied upon the decision in the case of Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in (2004)2 SCC 362. She further submitted that accused circulated the photographs deliberately to affect the prestige and privilege of the complainant and with an intention to defame her. If at all that was the defence, they ought to have produced such photographs at relevant time when the case is posted for evidence. On these grounds, she prayed to dismiss the petition filed by accused Nos.1 and 3 and allow the petition filed by the complainant and to cancel the bail in respect of other accused persons.
6. Complainant who is a party-in-person is present before the Court. By supporting the arguments of the learned HCGP she submitted that the accused have taken a contradictory objections by suppressing the real facts. She further submitted that accused have posted obscene photographs of the complainant and they threatened the complainant over phone. She further submitted that the accused persons have produced disseminating photographs to demolish her prestige. On these grounds, she also prayed to dismiss the petition filed by accused Nos.1 and 3 and allow the petition filed by her.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and the complainant-party-in-person and perused the records.
8. Several grounds have been urged in both the petitions. It is contended by the learned senior counsel for accused Nos.1 and 3 that the trial Court has committed a serious error in cancelling the bail to accused Nos.1 and 3. 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.
9. While granting the bail, the Court should not grant bail mechanically. Even very recently the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, reported in (2011) 1 SCC 694 has observed and considered as to what are the parameters which the Court has to keep in mind while considering the bail application. The main object of imposition of the conditions is that the accused should not tamper with the prosecution evidence; he should not abscond or he should not flee away from justice.
10. The Hon’ble Apex Court in the case of Dolat Ram & others Vs. State of Haryana, (cited supra), has reiterated that rejection of bail in a non-bailable case at the initial stage and cancellation of bail already granted have to be considered and dealt with in different basis. It is further held that very cogent and overwhelming circumstances are necessary for directing cancellation of bail already granted. The said decision has been followed by the Hon’ble Apex Court, in two subsequent decisions 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 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. It is true that the accused persons in the present case have been enjoying the benefit of bail granted to them by the trial Court. However, it is the contention of the learned Senior Counsel that there is no violation of the bail conditions. But it is the contention of the learned HCGP and the complainant-party-in-person that there is violation of bail condition, tampering with the prosecution evidence by disseminating the photographs and giving threat to the complainant.
12. In that light, let me consider the case on hand.
The first and foremost aspect is that by producing the photographs in the case before the Court below, the accused persons are tampering the case of the prosecution evidence. But it is the case of the accused Nos.1 and 3 that in order to defend themselves from the allegation made against accused No.1, the production of said documents was as a rebuttal to the allegation made in the case. I have carefully and cautiously gone through the submissions of the parties and perused the entire records. No doubt some photographs have been produced in the said case before the Court below. As to how and in what manner it is going to tamper the prosecution evidence is not forthcoming. The said documents are in the form of photographs. If at all the said documents are defaming or affecting the prestige and privilege of the complainant, then under such circumstances she has to establish the said fact only for the purpose of claiming the damages. Even she has to prove as to how those documents produced in the case are noticed and published in the public, that too when they have been produced in judicial proceedings. In that light, the said contention taken up by the complainant is not acceptable.
13. The second contention is that the learned counsel appearing on behalf of accused No.1 has threatened the complainant and in this behalf a complaint was registered by the jurisdictional police. On going through the said records, there is an allegation to the effect that the learned counsel while going out of the Court has threatened the complainant. But subsequently, the Investigating Officer called both the parties and after recording their statements the complaint came to be closed. With the consent of both the parties, when the complaint has been closed on the basis of the undertaking given by the parties and the advocates, then under such circumstance, it will not be a ground to cancel the bail. In that light, the said contention is also not acceptable.
14. The third aspect which has been dealt in by the complainant is that accused No.3 has not appeared before the Police Station and has not marked her attendance and the one which has been marked does not belong to her and the signature found in the Register are not belonging to her and as such there is a breach of condition. The trial Court after considering the said facts and comparing the signature, has come to the conclusion that the said signature does not tally with that of the signature of accused No.3. Though during the course of arguments, the learned counsel appearing for the parties have strenuously by referring to Section 73 of the Indian Evidence Act, have contended that the Court is having a power to compare the signature with bare eyes and form an opinion. Whereas, the learned Senior Counsel for the accused by relying upon the decision of the Hon’ble Apex Court submitted that the Court cannot compare the specimen signature and comparison of such signature in a proceeding by the Court with bare eyes is not advisable. But that is not the real issue before the Court. How the non-appearing of accused No.3 before the concerned Police Station and marking the attendance is going to affect the case of the prosecution or the complainant has to be looked into. Records also indicate the fact that the police officials who were working in the said Police Station have filed their affidavit to the effect that accused No.3 has appeared before the Police Station and she has marked her attendance. But the Court by comparing the signature has come to the conclusion that accused No.3 has not appeared before the Police Station and the signatures in the Register are not that of accused No.3. But the real point has been missed by both the parties. The said conditions imposed by the Court is only with an intention to see that accused persons should not abscond and they must be available for trial by retaining the freedom of enjoying their rights during the trial. This aspect of the matter has been lost by the trial Court. When it has decided to cancel the bail already granted, it appears that it overlooked the distinction of factors relevant for rejecting the bail or cancellation of the bail in a non-bailable case, which has already been granted. No material has been produced to show that there are very cogent and overwhelming circumstances with the abovesaid facts for cancellation of the bail. Non-marking of the attendance and production of the documents in a case are not the criteria which the Court has to keep in mind for cancellation of bail.
15. Usually in the matrimonial cases it is but natural that each of the spouse making different allegations only with an intention to see that by one or the other way, one of the spouse should be put to inconvenience and he or she should be harassed. It is also necessary to see that whether the act of the accused pressurizes the witnesses and manipulates the evidence of either of the parties to the proceedings. Granting of bail and imposition of conditions is to regulate and check the manipulation of the evidence by either of the parties to the proceedings. It is enforcing authority who has to look into the matter, whether any such situations are existing, then they can file an application for cancellation of the bail. In the instant case, the Investigating Officers have filed their affidavit contending that accused No.3 has appeared before the Police Station and marked her attendance. But the Court below has stepped into the shoes of the Investigating Authority and gone into comparing the signatures as if it is a full proof for the purpose of deciding a case and has wrongly come to the conclusion without keeping in view the object and purpose of imposition of conditions and has cancelled the bail in respect of accused No.3 without there being any discussion. Even if she has not marked her attendance, how it is going to prejudice the case of the complainant. That itself clearly goes to show that the complainant is only intending to harass accused No.3. If really the complainant is serious about breach of condition, definitely she ought not to have compromised when advocate gave a threat to her and a complaint was registered. But after compromising, filing of petition for cancellation of bail itself shows that subsequently on deliberation and discussion only with mala fide intention such an application has been filed. From this angle, the Court below was not justified in cancelling the bail granted to accused Nos.1 and 3. As held in the case of Dolat Ram & others Vs. State of Haryana (cited supra), it has been observed that for the purpose of cancellation of bail which has already been granted, very cogent and overwhelming circumstances are necessary and if no such circumstances are existing or there are no interference or attempt to interfere with the due course of administration of justice or evasion or attempt of evade the due course of justice or abuse of the concession granted to the accused in any manner. The Court after satisfying itself has to cancel the bail. The technicalities should be kept in mind by the Court. In that light, the Court below has lost sight of and proceeded to cancel the bail which has already been granted. It appears that the Court below overlooked the distinction of the factors relevant for rejecting the bail in a non-bailable case and passed the impugned order. Looking from any angle, the order of the trial Court appears to be perverse and not in accordance with law. In that light, it requires interference by this Court.
Taking into consideration the aforesaid facts and circumstances, Criminal Petition No.9194/2018 filed by accused Nos.1 and 3 is allowed. Impugned Order dated 5.12.2018, passed by the I Additional District and Sessions Court, Tumakuru in Crl.Mis.No.322/2018, to the extent of cancellation of bail in respect of accused Nos.1 and 3 is set aside and the earlier bail granted to them is restored.
Accused Nos.1 and 3, i.e., petitioners in Criminal Petition No.9194/2018 shall execute a fresh bail bond in terms of the earlier order. It is made clear that accused Nos.1 and 3 shall not further involve in such activities so as to hamper or interfere with the trial of the case.
Criminal Petition No.9216/2018 filed by the complainant is dismissed as devoid of merits.
Consequently, I.A.No.1/2018 filed in Criminal Petition No.9194/2018 stands dismissed.
Sd/-
*ck/- JUDGE