Karnataka High Court
Palabramaiah @ Umakantha vs State Of Karnataka on 30 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2696
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.6841/2020
BETWEEN :
Palabramaiah @ Umakantha
S/o. Late Ramaiah
Aged about 60 years
R/at: 24, KPC Layout
9th Cross, Sarjapura
Bengaluru - 560 035.
... Petitioner
(By Sri Sandesh J. Chouta, Sr.Advocate for
Sri M.Krishne Gowda, Advocate)
AND :
State of Karnataka
State by Electronic City P.S.
Represented by
The High Court Government Pleader
High Court of Karnataka
Bangalore - 560 001
... Respondent
(By Sri R.D.Renukaradhya, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.31/2018 of Electronic P.S., Bengaluru City for the
offences punishable under Sections 302 and 120-B read
with Section 34 of IPC.
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This Criminal Petition coming on for orders this
day, the Court made the following:-
ORDER
The present petition has been filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. praying to release him on bail in Crime No.31/2018 of Electronic City Police Station, Bengaluru City for the offences punishable under Sections 302 and 120-B read with Section 34 of IPC.
2. I have heard Sri Sandesh J. Chouta, learned Senior counsel for Sri M.Krishne Gowda, the learned counsel for the petitioner/accused No.1 and Sri R.D.Renukaradhya, the learned HCGP for the respondent-State.
3. The gist of the complaint is that on 21.2.2018 at about 9.20 a.m. when the deceased Suresh along with his brother Sai Kumar and nephew Shivaji were watching to catch a bus in Electronic City area, the accused -3- persons who were traveling in a bus saw them and immediately alighted from the bus with an intention to commit the murder of the deceased. It is alleged that there were several cases registered as against each other and they have fallen out while splitting the effects of committing dacoity and also on account of suspicion that each provided information to police about the other on account of which they were arrested on several occasions. It is further alleged that on 21.2.2018 the accused persons chased the deceased and his two companions. Due to fear, the deceased entered into a BMTC bus. The accused persons went inside the bus and they have assaulted the deceased with a small long and knives, because of the stab injuries, the deceased succumbed to the injuries. On the basis of the complaint a case has been registered.
4. It is the submission of learned Senior Counsel for the petitioner/accused No.1 that already this Court in Criminal Petition No.5127/2020 by order dated -4- 02.11.2020 and in Criminal Petition No.6021/2020 by order dated 17.11.2020 has released accused Nos.2 and 3 on bail. Under the similar facts and circumstances on the ground of parity, the petitioner/accused No.1 is also entitled to be released on bail. It is his further submission that earlier the petitioner/accused No.1 approached this Court and by order dated 25.09.2020, the same has been dismissed as not pressed and the case has not been decided on merits. It is his further submission that the alleged incident has been informed to the police on 21.02.2018 at about 9.20 a.m. and police have also visited the spot and have not registered the FIR. It is his further submission that police have visited the place and thereafter they shifted the body to St. Johns hospital and at that time also police have not conducted the inquest mahazer. It is his further submission that CW.15 is the driver of the BMTC Bus and CW.16 is the controller of the bus went and informed about the said incident to the police and at that time also -5- no case has been registered. It is his further submission that CW.2 went and informed to the police but the information has also not been treated as a complaint only when the son of the deceased went to the police station and at that time a suspicious case has been registered as against six persons. It is his further submission that not registering the case and subsequently after investigation of some part of the case, registering the case itself creates a doubt in the case of the prosecution and the first information report is not a information as contemplated under the law. It is his further submission that when the inquest mahazar has been drawn and the post mortem has been conducted, at that time also statement of the witnesses has not been recorded. It is his further submission that even in the case diaries recorded by the Investigating Officer on 05.06.2018 there is no reference about recording of the statement of the eye witnesses i.e.CWs.2, 15 and 16. It is his further submission that CW.2 has not mentioned identity of the -6- persons who entered in the bus and assaulted the deceased. It is his further submission that no suo-moto complaint has been registered by the Investigating Officer after coming to know about the cognizable offence. It is his further submission that earlier CWs.2, 15 and 16 were considered to be an eye witnesses and only after some time CWs.12 and 17 the co-brothers have been included as an eye witnesses to the alleged incident. It is his further submission that under the similar facts and circumstances when this Court has released accused Nos.2 and 3, on the ground of parity, the petitioner/accused No.1 is also entitled to be released on bail. It is his further submission that the main objection of the learned High Court Government Pleader is that he has been involved in many more cases but in some cases he has been acquitted and in some cases he has been enlarged on bail. Under such circumstances, he cannot be considered to be a habitual offender as in none of the cases he has been convicted. It is his further -7- submission that the the petitioner/accused No.1 is ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and to release the petitioner/accused No.1 on bail.
5. Though the said petition has been seriously contested by the learned HCGP by contending that 52 cases have been registered in the State of Andhra Pradesh, four cases have been registered in the State of Karnataka and three cases have been registered in the State of Tamilnadu and the petitioner/accused No.1 is a habitual offender but in order to call the accused as a habitual offender the accused must be convicted for the offences and if he has not been convicted in three consecutive offences, he cannot be considered to be a habitual offender. It is well settled preposition of law that until and unless the petitioner/accused No.1 has been tried and convicted for the alleged offence, he cannot be held as a habitual offender until he is proved to be guilty, -8- no presumption can be drawn about his guilt as observed in the case of Dr.Subhas Kashinath mahajan vs. The State of Maharashtra & another reported in AIR 2018 SC 1498 at paragraph 65 of the said decision, the Hon'ble Apex Court has observed as under:
"65. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or court. In Noor Aga v. State of Punjab, it was observed:
"33. Presumption of innocence is a human right as envisaged under Article14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory -9- provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India).
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35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.
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43. The issue of reverse burden vis-a-vis the human rights regime must also be noticed. The approach of the common law is that it is the duty of the prosecution to prove a person guilty. Indisputably, this
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common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the court where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See "The Presumption of Innocence in English Criminal Law", 1996, CRIM.L.REV.306, at p.309.)
44. In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated:
"Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law..."
Similar provisions have been made in Article 6.2 of the European Convention for
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the Protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966).
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47. We may notice that Sachs, J. in State v. Coetzee [1997(2)LRC 593] explained the significance of the presumption of innocence in the following terms:
"There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book... Hence the presumption
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of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption.... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases."
In view of the above, an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the
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complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly."
6. As could be seen from the records that already this Court after taking into consideration the details of factual matrix of the case on hand, by orders dated 17.11.2020 and 17.12.2019 has released accused Nos.2 and 3 on bail, on the ground of parity, the petitioner/accused No.1 is also entitled to be released on bail.
7. Taking into consideration the above said facts and circumstances, by imposing some stringent conditions, if the petitioner/accused No.1 is ordered to be released on bail, it is going to meet the ends of justice. In that light, the petition is allowed.
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8. The petitioner/accused No.1 is ordered to be released on bail in Crime No.31/2018 of Electronic City Police Station, Bengaluru City for the offences punishable under Sections 302 and 120-B read with Section 34 of IPC, with following conditions:
i) The petitioners/accused No.1 shall execute a personal bond for a sum of Rs.2,00,000/-(Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of Trial Court.
ii) He shall not tamper with the
prosecution evidence directly or
indirectly.
iii) He shall be regular in attending the
trial unless he is exempted for good reason by the trial Court..
iv) He shall not indulge in similar type of criminal activities.
v) He shall not leave the jurisdiction of the Court without prior permission of the Court.
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vi) He shall mark his attendance once in a month on every first in between 10.00 a.m. and 5.00 p.m. till the trial is concluded.
Sd/-
JUDGE KA