IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA WRIT PETITION NOs.54885-54886 OF 2017 (GM-RES) BETWEEN:
ZIYA UL HAQ S/O LATE ABDUL AZEEZ AGED ABOUT 42 YEARS R/AT SHABINA COTTAGE NEAR AKU HIGH SCHOOL GURUKAMBLA, BADAGULIPADI D.K.-574151 (BY SRI.SACHIN B.S, ADV.,) AND:
STATE OF KARNATAKA BY BAJPE POLICE STATION ... PETITIONER REPRESENTED BY SSTATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE-560001 …RESPONDENT (BY SRI.S.RACHAIAH, HCGP.,) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DTD:30.11.2017 PASSED IN SC NO.187/2017 ON THE FILE OF FIRST ADDL. DISTRICT JUDGE, D.K, MANGALORE AS PER ANNX-A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:-
ORDER The petitioner has sought for quashing of the order dated 30.11.2017 passed by the First Additional District Judge, Dakshina Kannada, Mangaluru in SC No.187/2017 and also for a direction to the First Additional District Judge to release the petitioner forthwith in connection with SC No.187/2017.
2. I have heard the arguments of the learned counsel for the petitioner as well as learned High Court Government Pleader. Perused the records.
3. The brief factual aspects that emanate from the records are that; the Bajpe Police in Mangaluru District submitted a charge sheet against the petitioner herein for the alleged offences under Sections 498A, 323, 506 and 313 of IPC on 16.10.2017. The JMFC., II Court in fact has taken cognizance of the above said offences on 24.10.2017. After filing of the charge sheet and taking of the cognizance of the charge sheet by the learned Magistrate, the petitioner moved a bail petition under Section 439 of Cr.P.C in Crl.Misc.Case No.1404/2017 dated 25.11.2017 on the file of the Principal Sessions Judge, Dakshina Kannada, Mangaluru. In the meantime, when the bail petition was pending, learned JMFC.II, has committed the case to the Court of Sessions as one of the offence is triable by the Court of Sessions vide order dated 09.11.2017 with a direction to the concerned police to produce the accused before the concerned Court on 18.11.2017. On 13.11.2017, the bail petition in Crl.Misc.Case No.1404/2017 was heard and posted the case for orders on 25.11.2017.
4. In the meantime, by virtue of the committal order passed by the JMFC-II Court, on 17.11.2017 the Principal District and Sessions Judge, Dakshina Kannada has received the committal report and he assigned the said case to the First Additional District Judge for disposal in accordance with law. On 18.11.2017, the First Additional District Judge has taken up the matter and as the accused was produced before him, he remanded him to the judicial custody. On 25.11.2017, the Principal District and Sessions Judge has allowed the bail petition filed in Crl.Misc.Case No.1404/2017 and granted bail on certain conditions to the petitioner. Along with the certified copy of the said bail order, on 28.11.2017 the petitioner through his counsel moved a memo with surety affidavit before the First Additional District Judge for releasing of the accused. Instead of releasing the accused, First Additional District Judge without jurisdiction has heard the memo filed by the accused and virtually rejected the said memo and refused to release the accused on bail, by virtue of the bail order granted by the Principal District and Sessions Judge, Dakshina Kannada, Mangaluru in Crl.Misc.1404/2017 by assigning reasons that, the accused has suppressed the proceedings in SC No.187/2017, while arguing the bail petition before the Principal Sessions Court.
5. The courts should bear in mind as to how the right of liberty of a person is very zealously safeguarded by the laws as well as by the Hon'ble Apex Court. Therefore, it is just and necessary to refer two rulings of the Hon'ble Apex Court, which are quoted hereunder:
(1) In a decision reported in (1983) 2 SCC 417 between Uday Chand and Others Vs. Sheikh Mohd. Abdullah, Chief Minister, J & K & others, three Judges Bench has observed thus -
“Accused enlarged on bail by court – Held, cannot be rearrested soon thereafter without apprising such court especially when no disclosure was made to that court before it granted bail that investigation for any other offence was then pending against the accused. Re-arrest illegal.”
(2) In another ruling reported in AIR 1984 SC 372 between Bhagirathsinh Judeja Vs. State of Gujarath, the Hon'ble Apex Court while dealing with the relevant considerations for cancellation of bail, the court has observed thus – “Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidences. If there is no prima facie case there s no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evident.”
6. The above said two decisions makes it abundantly clear that even if any new case is made out after release of the accused on bail ipsofacto, the Court or the police will not get a right to take the accused to the custody unless the bail originally granted is cancelled for any substantial reasons, the court also observed as noted above that there must be overwhelming circumstances are necessary for cancellation of bail. Therefore, it is clear that the right of a person once he has been granted by the competent authority shall be safeguarded with utmost respect to the said order passed by the competent court.
7. In this particular case as noted above, the learned Principal District and Sessions Judge has considered all the provisions under which the accused petitioner has been charged. Even no additional offence has been quoted in the charge sheet. When such being the case, the Additional Sessions Judge unless the bail order granted earlier is cancelled by the competent court by giving cogent and proper reasons that order should not have been ignored. Therefore, the very order of remanding the accused by the Additional District Judge, Mangaluru virtually amounts to nullify the effect of the bail order passed by the Principal District and Sessions Judge.
8. The above said facts and circumstances of the case, clearly goes to show that the trial Judge has exceeded its limits in playing with the right of liberty of a person guaranteed under the Constitution of India by rejecting the memo filed.
9. Learned counsel for the petitioner submitted that on the basis of the valid order passed by the Principal Sessions Judge, Dakshina Kannada, Mangaluru, the Additional Sessions Judge should not have rejected the memo. She ought to have respected the order passed by the Principal District Judge in the said Crl.Misc.1404/2017. Instead of simply releasing the accused on bail, she ventured upon to supersede the order passed by the Principal District Judge which amounts to an order without jurisdiction.
7. When a Competent Court has passed an order releasing the petitioner on bail, it becomes the duty of the Court to release the petitioner under whom he is in custody. Unless the said valid and legal order passed by the Principal District and Sessions Judge is cancelled, as long as it is in force, she has no jurisdiction either to cancel the order passed in Crl.Misc.1404/2017 or she can pass any other order in derogation to the said order. It virtually amounts to showing disrespect to the order passed by the District Judge in Crl.Misc.1404/2017 dated 25.11.2017 and also violates the judicial discipline.
8. Further, added to that, as I have already noted, on production of the said order of bail, the petitioner is legally entitled to be enlarged on bail. Keeping such a person in jail, though he is entitled for release also amounts to violation of his constitutional rights.
9. Under the above said circumstances, I am of the opinion that the order passed by the First Additional District Judge is liable to be quashed and a direction shall be issued as prayed for.
10. Apart from the above, a copy of this order shall be placed for consideration of the Administrative Judge concerned in this regard. Hence, I proceed to pass the following;
ORDER (i) The petitions are allowed. Consequently, the order passed by the First Additional District Judge, Dakshina Kannada, Mangaluru in SC No.187/2017 dated 30.11.2017 is hereby set- aside.
(ii) The First Additional District Judge, Dakshina Kannada, Mangaluru is hereby directed to release the petitioner forthwith on accepting the order passed by the learned Principal District and Sessions Judge in Crl.Misc.1404/2017 dated 25.11.2017 and on petitioner furnishing surety.
(iii) The Registry is hereby directed to place a copy of this order before the Hon’ble Administrative Judge, Dakshina Kannada, Mangaluru for information.
GH/PL* Sd/- JUDGE