IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.7555/2016 BETWEEN:
THE STATE OF KARNATAKA BY BANTWAL TOWN POLICE STATION D.K. REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 01 (BY SRI.SANDESH J. CHOUTA, SPP) AND:
MITHUN S/O. NARAYANA POOJARY, AGED 27 YEARS, R/AT DEVASYA HOUSE, GOLTHAMAJALU VILLAGE, BANTWAL TALUK – 574 219 ... PETITIONER ... RESPONDENT (BY SRI.N.B.NARAGUND, SE. COUNSEL FOR SRI.M.VINOD KUMAR, ADVS.) THIS CRIMINAL PETITION IS FILED U/S 439 (2) CR.P.C. PRAYING TO CANCEL THE BAIL ORDER DATED 17.03.2016 PASSED BY THIS HON’BLE COURT ENLARGING THE ACCUSED-RESPONDENT ON BAIL IN CRL.P.NO.1720/2016 IN CONNECTION WITH CR.NO.208/2015 OF BANTWAL RURAL P.S., D.K. FOR THE OFFENCES P/U/S 143, 147, 148, 120B, 341, 324, 307, 302, 201 R/W 149 OF IPC AND DIRECT THAT THE ACCUSED BE ARRESTED AND COMMITTED TO CUSTODY.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R State has filed this petition invoking Section 482 of Cr.P.C. for cancellation of bail granted to respondent – accused No.3, who has been arraigned as such in Cr.No.208/2015 registered for the offences punishable under Sections 143, 147, 148, 120-B, 201, 341, 324, 307 and 302 read with Section 149 of IPC contending interalia that conditions imposed while granting bail by order dated 17.03.2016 has been violated.
2. I have heard the arguments of Sri. Sandesh J. Chouta, learned SPP appearing for petitioner-State and Sri.N.B.Naragund, learned Senior Counsel appearing for respondent-accused No.3. On perusal of records it would disclose that Coordinate Bench by order dated 17.03.2016 passed in Crl.P.No.1720/2016 had enlarged the respondent herein (accused No.3) on bail conditionally. Conditions so imposed reads as under:
(i) Petitioners shall be released on bail on their executing a personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) each with one surety for the like sum to the satisfaction of the concerned court.
(ii) Petitioners shall not hold out threats to the prosecution witnesses or lure them in any manner.
(iii) Petitioners shall not involve in any criminal activities.
(iv) Petitioners shall mark their attendance at the respondent-police station twice in a week i.e. on every Wednesday and Sunday between 9 a.m. and 5 p.m., for a period of one year from the date of their release from the prison and thereafter, once in a month on every second Sunday between 9 a.m. to 5 p.m. without fail till disposal of the case registered against them.
(v) Petitioners shall not tamper or attempt to any of the prosecution witnesses.
(vi) If the petitioners violate any one of the conditions, the prosecution is at liberty to seek cancellation of bail.
3. It is the contention of Sri. Sandesh J. Chouta, learned SPP appearing for State that respondent is a notorious criminal, rowdy sheeter and several criminal cases are registered against him in various police stations pending trial and he has no regard to the orders of Court and has violated condition Nos.3 and 4. By virtue of liberty granted, State is seeking for cancellation of bail. Elaborating his submission learned SPP submits that respondent was required to appear before the jurisdictional police as per condition No.4 and has remained absent and despite putting the petitioner on strict terms for granting liberty by directing him that he shall not involve in any criminal activities, yet he has indulged himself in criminal acts and one such act resulted in registration of FIR in Cr.No.29/2017 by Bantwal Town Police Station on 06.02.2017 for the offences punishable under Sections 143, 147, 148, 504, 506, 507, 323, 324, 307, 397 read with Section 149 of IPC. Hence, he seeks for allowing the petition.
4. In support of his submission he has relied upon the following judgments:
(i) 2011 AIR SCW 2751:
CBI, HYDERABAD vs. SUBRAMANI GOPALAKRISHNAN & ANR.
(ii) (2012) 11 SCC 632:
SHIV MOHAN KAPOOR vs. STATE OF UTTAR PRADESH AND ANOTHER (iii) 1995 SCC (CRI) 237:
DOLAT RAM AND OTHERS vs. STATE OF HARYANA 5. Per contra, Sri. N.B. Naragund, learned Senior Counsel appearing on behalf of respondent – accused No.3 has reiterated the contentions raised in the statement of objections and would submit that cancellation of bail cannot be on the ground that accused had remained absent on few occasions as ordered under the conditions imposed and only in the event of trial getting hampered or witnesses being terrorized, cancellation of bail can be ordered, as otherwise not? He would also draw the attention of Court to the very document produced by the State to buttress his arguments that if really respondent – accused No.3 had remained absent, as is now sought to be contended on 72 dates commencing from 06.04.2016 till date, no explanation whatsoever is forthcoming from the State as to why they did not take steps immediately to seek for cancellation of bail and this would only indicate that mind of the State is to somehow target the respondent and as such, he prays for dismissal of the petition.
6. Having heard the learned Advocates appearing for the parties and on perusal of records and also the authorities relied upon by the learned Senior Counsel, it would clearly emerge from the law laid down by the Apex Court that paramount consideration while examining the plea for cancellation of bail the Court is arriving at satisfaction that cancellation is warranted on the basis of material placed on record. To put it differently, intervening circumstances after grant of bail till cancellation is sought for, is one of the prime factor which will have to be taken into consideration while adjudicating such plea. Every violation would not by itself be a ground for cancellation of bail. In other words, violation would be such that it would result in trial getting delayed or trial cannot proceed on account of such supervening circumstances.
7. As held by Apex Court in the case of CBI, HYDERABAD vs. SUBRAMANI GOPALAKRISHNAN & ANR. referred to supra, bail once granted should not be cancelled in a mechanical manner without considering whether any circumstances exists fro such cancellation and it would no longer be conducive to allow the accused to retain his freedom by enjoying the concession of bail during trial or it would hamper fair trial. Keeping these sound principles in mind when the facts on hand are examined records would disclose that respondent – accused No.3 was enlarged on bail by order dated 17.03.2016. The attendance register (photocopy) which is appended to petition would disclose that he had appeared and marked his attendance and has intermittently remained absent or in other words, he has been appearing before the jurisdictional police on certain dates and has remained absent on certain dates. The dates on which he had remained absent has been highlighted by the learned SPP in the tabular column produced along with memo as per document No.3.
8. As against this claim, respondent in his statement of objections has also contended that in suo- moto complaint, which came to be registered by Bantwal Police Station against him he had been arrested and enlarged on bail and he has been visiting said police station to mark his attendance, which incidentally happens to be the same police station. If so, there is no reason as to why respondent would not have marked his attendance in the present case.
9. Be that as it may. The factual aspects are left at it. It is not the case of the prosecution that on account of respondent having been enlarged on bail either he had indulged in terrorizing the witnesses or had absconded himself and thereby obstructing trial before the jurisdictional Court. In fact, terms on which he was enlarged on bail would indicate that he had to mark has attendance on every Wednesday and Sunday between 9.00 a.m. to 5.00 p.m. from the date of release and once in a month on every second Sunday between 9.00 a.m. to 5.00 p.m. There is no specific plea with regard to second condition in para 6(iv) having been violated. Insofar as contention regarding respondent purported to have indulged in criminal activities pursuant to order of release, when examined in the background of order dated 25.04.2017 passed in Crl.P.No.3063/2017, which proceedings was initiated by respondent herein along with three others for quashing all the proceedings in Cr.No.29/2017 would clearly suggest or disclose that complainant himself has admitted that it was a petty quarrel, which resulted in filing of complaint and undisputedly, said proceedings also came to be quashed by this Court. In that view of the matter, contention of learned SPP cannot be accepted. Hence, criminal petition stands rejected.
SD/- JUDGE DR