Karnataka High Court
Kumara Nayaka vs State Of Karnataka on 3 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 2470
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL PETITION No.2978/2020
BETWEEN:
KUMARA NAYAKA
S/O KALAIAH NAYAKA
AGED 39 YEARS
RESIDENT OF No.3, 4TH CROSS
SUVARNANAGAR, DODDABIDIRIKALLU
NAGASANDRA POST
BANGALORE - 560 073.
PRESENTLY LODGED AT CENTRAL PRISON
PARAPPANNA AGRAHARA, BANGALORE.
...PETITIONER
(BY SRI ROHAN KOTHARI, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH THE BAGALAGUNTE
POLICE STATION
REPRESENTED BY THE LTD.
HIGH COURT GOVT. PLEADER
HIGH COURT BUILDING
BANGALORE - 560 001.
...RESPONDENT
(BY SRI K NAGESHWARAPPA, HCGP)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER
ON BAIL IN CR.No.423/2019 REGISTERED BY
BAGALAGUNTE POLICE STATION, BENGALURU FOR THE
OFFENCE PUNISHABLE UNDER SECTION 326(A) R/W 34
OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT
BENGALURU MADE THE FOLLOWING:
ORDER
This matter is taken up through Video Conference today. Learned counsel Sri. Rohan Kothari for petitioner and Sri. K.Nageshwarappa, learned HCGP for respondent are present.
2. The petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.423/2019 registered by the respondent- Police for the offence punishable under Sections 326(A) read with 34 of IPC.
3. The date of complaint is 19-12-2019. Petitioner was arrested and remanded to judicial custody on 20-12-2019.
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4. Previously, the petitioner had made applications before the learned LXXI Additional City Civil and Sessions Judge, Bengaluru under Section 439 of Cr.P.C., in Crl.Misc.266/2020 and C.Crl.Misc. No.346/2020 and they came to be dismissed. Hence, this petition.
5. Copy of the petition is served on learned HCGP for respondent.
6. Heard.
7. The substance of the complaint as could be seen from the records are as under:
The complaint is lodged by Smt. Indira Bai w/o.
N. Balaji against the petitioner. On the basis of which a case came to be registered against the petitioner for the offence punishable under Section 326-A read with 34 of IPC in Crime No.423/2019 by the respondent plice.4
8. It is alleged in the complaint that on 19.12.2019 at 5.30 a.m. the complainant was moving in front of a provision store, she found two unknown persons were standing along with motor cycle and when she was moving infront of them one person who was pillion rider in a motor cycle poured acid on complainant's face and she sustained burn injuries and when the complainant started to shout, the accused persons ran away from the spot. Immediately, the complainant went to her house and her husband shifted her to hospital. She suffered serious injuries from neck to chest.
9. Learned counsel for the petitioner would submit that the petitioner was arrested on 20-12-2019 and he has been remanded to judicial custody on the same day. First bail application was rejected on 30-01-2020 in Crl.Misc.No.266/2020 on merits and it is the subsequent application that was 5 filed in C.Crl.Misc.No.346/2020 and that also came to be rejected on 16-06-2020. The said order is erroneous and is liable to be set aside as it is in violation of Section 167 of Cr.P.C. and entire family of the petitioner is suffering because the petitioner is an judicial custody. The petitioner has no criminal antecedents rendering for rejection of bail petition. Petitioner is ready to comply with the conditions that may be imposed on him and he is ready to offer surety in accordance with directions of this Court.
10. Learned Government Pleader for respondent opposes the bail petition of the petitioner and submits that the petitioner has not made out ground for getting bail. The stay of the petitioner in judicial custody has no relevance for his release. The complainant has sustained grievous injuries and the intentions of the petitioner are not good. The conduct of the petitioner is threatening also. He does not 6 appear to be a law abiding citizen and has committed heinous offence.
11. It is a case of acid attack, on a housewife wherein, from chest upto to the neck victim has sustained burnt injuries. The present petitioner was arrested. The allegations are serious and the injuries sustained by the victim are grievous. It is not only hurt to body, but also the mind of the victim due to no fault on her she has to bear the burnt injuries.
12. It is the submission of the learned counsel for petitioner that the there is violation of Section 167 of Cr.P.C. Section 167 of Cr.P.C. is as under:
"167.Procedure when investigation cannot be completed in twenty-four hours.
"(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-
four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- 7 inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- 1[(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] 8 1[(b) no Magistrate shall authorise detention in any custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 2[Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;].
3[Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be ].
4[Provided further that in case of woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution.] 5[(2A) Notwithstanding anything contained in sub- section (1) or sub- section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate 9 is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- section, shall be taken into account in computing the period specified in paragraph (a) of the proviso the sub-section(2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of 10 his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6)Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section(5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
13. The offence alleged against the petitioner is punishable under Section 326(A) read with 34 IPC. The said section reads as under:
"2[326A. Voluntarily causing grievous hurt by use of acid, etc.- Whoever causes permanent or partial damage or deformity to, or buns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using 11 any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine.
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.''
14. It is reminded time and again that, bail under Section 167 (2) is morefully considered as a statutory bail where the position almost becomes similar to that of a bailable offence. It is also one which are due to the default of the prosecuting side or not investigating the matter in time and submitting the final report. In the circumstances, the courts have to apply legal mind and not to be swayed away by emotional aspects of the case.
15. On perusal, it is seen at page No.11 in the order dated 16-06-2020, wherein the learned judge 12 has observed the provisions of Section 167 (2)(a)(i) of Cr.P.C. being brought to the notice of the Judge by the learned counsel for petitioner, still the Judge does not accept it. It is not correct. The provision of law what has been mentioned may be a different one, but the doctrine of ubi jus ibi remedium is applicable in our system.
16. The legal position cannot be reversed on the ground that the judge does not accept it. In the circumstances, the provision is not declared as untenable. The only aspect that would be considered is the date of remand and the fact of filing the application. It is not further necessary to go in detail to ascertain from the prosecution as the order dated 16-06-2020 clearly speaks that the period of 90 days expires on 20.3.2020. It is almost certain that the petitioner was entitled for bail as on that day. Thus, realization of benefits of statutory bail become vested 13 on the pointed date on the completion of statutory period and it is not within the jurisdiction of the court, but withheld the rule. Hence, it is not the nature of application or mentioning the provisions of law that has to be read in between the lines and to give scope on higher technicality. The investigating officer in the case it appears has shown sheer negligence in investigating the matter and submitting the report.
17. It is for the competent authorities to look into the matter by issuing a show cause notice to the investigating officer for the delay, so that the benefit enures to the petitioner.
18. In the over all circumstances of the case, I do not find serious prejudice will be caused to the prosecution if the petitioner is released on bail. However, the apprehension of the prosecution could be resolved by imposing conditions.
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19. Hence, the petition filed by the petitioner is allowed. The petitioner is released on bail in Crime No.423/2019 registered by respondent- Police, against him for the offence punishable under Section 326-A read with 34 of IPC subject to the following conditions:
i) Petitioner shall execute personal bond for a sum of Rs.2,00,000/- with a surety of a person possessing immovable properties for the likesum to the satisfaction of the Court.
ii) Petitioner shall not terrorize the witnesses or tamper with the prosecution evidence in any manner and shall not come into contact with the complainant or his family members nor shall adopt vindictive measures against the complainant.
iii) Petitioner shall not leave the State of Karnataka without the permission of the trial court for a period of six months and shall mark attendance before the Investigating Officer between 10.00 p.m. to 11.00 p.m. on every first, third and third Saturday of each month till further orders by the trial court.
iv) Petitioner shall undergo medical check up immediately by suitable Medical Officer upon his release on bail, and quarantine himself exclusively in his house for a period of 14 days 15 from the date of release, unless, he is required for hospitalization.
Issue Show cause notice to Investigating officer as observed above Sd/-
JUDGE tsn*