Karnataka High Court
Mr. Murali B S vs State Of Karnataka on 21 August, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2023:KHC:29732
CRL.P No. 12569 of 2022
IN THE HIGH COURT OF KARNATAKA AT, BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 12569 OF 2022 (439)
Between:
Mr. Murali B.S.
S/o M. Shankaregowda
Aged about 26 years
R/o Bachahalli Village
Antharahalli Post
Thoobagere Hobli
Doddaballapur Taluk
Bangalore Rural District-561 203.
... Petitioner
(By Sri Hashmath Pasha, Senior Counsel for
Sri Kariappa N.A., Advocate)
AND:
Digitally signed by
1. State of Karnataka by
SWETA KULKARNI
Location: HIGH Doddaballapur Rural Police Station
COURT OF
KARNATAKA Doddaballapura-561 203.
(represented by learned
State Public Prosecutor)
2. Mr. M.V. Rajanna
S/o Late Veeranna
Aged about 63 years
R/at No.24, 1st Cross
Govindaraju Layout
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NC: 2023:KHC:29732
CRL.P No. 12569 of 2022
Nagashettihalli,
RMV II Stage
BANGALORE-560 094.
... Respondents
(By Sri R.D. Renukaradhya, HCGP for R1;
Sri Vivek Reddy, Senior Counsel for
Sri K.N. Subba Reddy, Advocate for R2)
This Criminal Petition is filed under Section 439 (2) of
Criminal Procedure Code, praying to set aside and cancel the
bail order dated 17.11.2022 passed in Crl.Misc.No.10211/2022
on the file of the IV Additional District and Sessions Judge,
Doddaballapura, for the offence under Section 306 of IPC,
which is arising out of Crime No.268/2022 of Doddaballapur
Rural Police and consequently direct the first respondent police
to arrest the respondent No.2 and commit him to prison, in the
ends of justice.
This petition having been heard and reserved on
06.07.2023, coming on for pronouncement of order this day
(at Kalaburagi Bench through Video Conference), the
Court made the following:
ORDER
The de facto complainant in Crime No.268/2022 of Doddaballapura Rural Police Station, Bengaluru Rural district has preferred this petition under Section 439 (2) of Cr.P.C. to set aside and cancel the order dated 17.11.2022 passed by the IV Additional District and Sessions Judge, Doddaballapura, in Crl.Misc.No.10211/2022 granting bail -3- NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 to respondent No.2 and consequently to direct the police to arrest him and commit to prison.
2. I have heard the learned Senior Counsel appearing for the petitioner and respondent No.2 and the learned High Court Government Pleader appearing for the State. Perused the material on record.
3. The brief facts of the case as averred in the petition are that the complainant's father deceased M. Shankaregowda and his elder brother Thotadappa are the owners of land bearing Sy.No.53/5 to an extent of 2 acres, situated in Bachahalli village, Tubagere Hobli, Doddaballapur Taluk, Bengaluru Rural District. About 25 years back, deceased Shankaregowda was intending to avail loan from the bank. At that time, his distant relative one Jayarame Gowda i.e., father-in-law of respondent No.2, promised him to give loan provided he gives security of his land. A sum of Rs.20,000/- was advanced as loan by fraudulently taking his signature on a stamp paper and thereafter registered the land in his name. The loan -4- NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 amount with interest was rounded off to Rs.60,000/- and a sum of Rs.40,000/- was cleared, for which an agreement was executed by Jayarame Gowda stating that on repayment of balance amount of Rs.20,000/-, a resale deed will be executed and to this effect agreement was executed, drafted by respondent No.2. Thereafter, the entire balance amount was paid with interest to Jayarame Gowda, but the land was not registered in their name as agreed. Further, respondent No.2 and his father-in-law Jayarame Gowda colluded with the police and trespassed into the land and thrown out Shankaregowda and Thotadappa from their farm house and land and also got registered a false FIR against deceased Shankaregowda and others in Crime No.189/2016 for the offence punishable under Sections 427, 506, 504, 447 read with Section 34 of IPC and got arrested them and later they were released on bail by an order dated 15.05.2017. In the said case, charge sheet was filed against Shankaregowda, Thotadappa and their sisters. -5-
NC: 2023:KHC:29732 CRL.P No. 12569 of 2022
4. The petitioner being one of the rightful owners of the land, filed a suit for partition in O.S.No.404/2015 on the file of the Court of Additional Senior Civil Judge at Doddaballapura. Jayarame Gowda was one of the defendants in the said suit. To deprive the petitioner from the rightful ownership of the landed property, Jayarame Gowda executed a gift deed in the name of his two grand children, who are none other than the children of respondent No.2 and on the strength of the said gift deed, they got impleaded as defendants in the suit.
5. The respondent No.2 herein started torturing Shankaregowda posing threat to his life through certain persons. Due to his continuous torture and because of his fraudulent and mischievous act tending to deprive of his landed property, Shankaregowda went to the very same land and committed suicide by consuming insecticide. Therefore, Crime No.268/2022 in Doddaballapura Rural Police Station was registered against respondent -6- NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 No.2/accused for an offence punishable under Section 306 of IPC.
6. The petitioner being aggrieved by the order of granting bail to respondent No.2 by the learned Sessions Judge has preferred this petition.
7. The contentions raised by the learned Senior Counsel appearing for the petitioner are that, there is a prima facie case made out against respondent No.2 for the offence punishable under Section 306 of IPC and the investigation was at the inception and therefore, the learned Sessions Judge was not proper in grating bail. It is vehemently contended that the usual procedure for considering the bail petition was not followed and initially an interim bail was granted in a mechanical manner without assigning any reasons and on the strength of the said interim bail, final order was passed grating bail to respondent No.2.
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8. The learned Senior Counsel contended that respondent No.2 and the police have colluded with each other and at the same time, the learned Sessions Judge failed to protect the interest of the victims without taking into consideration that respondent No.2 is capable of interfering in the investigation. He would further contend that without suffering detention, respondent No.2 has put continuous threat to the life of petitioner and his family and therefore, they are apprehending grave risk to their life.
9. The learned Senior Counsel has also contended that a death note has been recovered and hence, it is clear that on account of the ill-treatment and abetment by respondent No.2, Shankaregowda has taken the extreme step and therefore, the ingredients of the offence are made out.
10. The learned Senior Counsel has relied on a decision of the Hon'ble Apex Court in Puran vs. Rambilas and another reported in (2001) 6 SCC 338 to contend -8- NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 that if a perverse order granting bail is passed in a heinous crime, ignoring material and evidence on record, such an order would be against principles of law and interest of justice would require that such a perverse order be set aside and bail be cancelled.
11. It is also contended that where a person concerned is accused of an offence which is punishable with imprisonment for life, notice has to be given to the Public Prosecutor unless it is not practicable, then reasons to be recorded in writing. In support of the said contention, he relied on a decision of the Hon'ble Apex Court in Gulabrao Baburao Deokar vs. State of Maharashtra and others reported in (2013) 16 SCC 190. Hence, it is contended that the order passed is in breach of the mandatory requirements and therefore, it is liable to be set aside.
12. The learned Senior Counsel appearing for respondent No.2 has denied all the allegations. He has filed a memo along with the documents pertaining to the -9- NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 sale transactions as well as the copies of the judgment/orders passed by the Civil Court in respect of the land in question, and contended that though the sale deed was executed in favour of Jayarame Gowda by petitioner's father and they suffered orders in the Civil Court, on the one pretext or the other, the petitioner and his family were trying to prevent the rightful ownership of father-in-law of respondent No.2, of the land and as per the order of the Civil Court, they had to be evicted and even the criminal case was also registered against them for trespassing into the property. He contends that there is no any high handedness by the police as alleged. He contends that the allegations against respondent No.2 of either abetting or instigating the commission of suicide is nothing but an act of vengeance and even the death note alleged to have been left behind by the deceased is concocted. He contends that the learned Sessions Judge, considering the facts and circumstances, has enlarged respondent No.2 on bail and all the conditions imposed in
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NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 the bail order have been complied and there is no violation of any condition.
13. The learned Senior counsel would also submit that a Co-ordinate Bench has stalled the further investigation in Crime No.268/2022, pending on the file of Principal Civil Judge and JMFC, Doddaballapura initiated against the respondent No.2, till the disposal of the said petition. He has furnished a certified copy of the order passed in Criminal Petition No.4514/2023 dated 13.07.2023 filed under Section 482 of Cr.P.C. He contends that considering the law laid down in Kanchan Sharma vs. State of Uttar Pradesh reported in 2021 SCC Online SC 737, this Court was pleased to grant stay of the further proceedings. He therefore seeks to dismiss the petition.
14. This Court has anxiously considered the rival submissions. The short question is as to whether the order passed by the learned Sessions Judge granting bail to respondent No.2 in Crime No.268/2022 of
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NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 Doddaballapura Rural Police Station, registered for an offence punishable under Section 306 of IPC is liable to be set aside or not.
15. It is not necessary to go deep into the civil dispute existing between the parties as that is not the scope of this petition. But the fact remains that both the parties are entangled with disputes in respect of the land in question, which was registered in favour of father-in-law of respondent No.2. The complainant has claimed that by a fraudulent act the land was got registered by the father- in-law of respondent No.2, one Jayarame Gowda and subsequently his family was forcibly evicted from the residential house, etc. The allegations are that due to continuous threat and torture by respondent No.2, petitioner's father by name Shankaregowda committed suicide and therefore, the ingredients of the offence alleged against him are made out. Secondly the petitioner is aggrieved by the procedure followed in granting bail to respondent No.2.
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NC: 2023:KHC:29732 CRL.P No. 12569 of 2022
16. The material on record reveal that respondent No.2 initially preferred a petition under Section 438 of Cr.P.C., but he was arrested on 04.11.2022 and produced before the learned Magistrate. Hence, he preferred a petition for bail in Crl.Misc.No.10211/2022 and interim bail was sought. The learned Sessions Judge was pleased to grant him the interim relief on certain conditions and thereafter, by a detailed order dated 17.11.2022 allowed the main petition releasing the respondent No.2 on bail imposing conditions. There is no illegality committed by the learned Sessions Judge in disposing of the bail petition. It cannot be said that the discretion was not exercised judiciously and the order was passed in violation of any norms prescribed for consideration of a bail petition. The Hon'ble Apex Court has reiterated that power to grant regular bail includes the power to grant interim bail. A Court hearing a regular bail application has got inherent power to grant interim bail pending disposal of the regular bail application, to protect the life and liberty of every person, if prima facie if appears, he is
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NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 innocent. At that time, there would be no justification in entering into a roving enquiry. A person should not be compelled to go to jail and bail cannot be withheld merely as a punishment.
17. The petitioner's counsel has relied on the death note alleged to have been left behind by the deceased. The signature in the said death note has been seriously disputed by the learned counsel appearing for respondent No.2. This Court is not required to conduct a mini trial at this stage. Admittedly, the parties are at loggerheads hence, allegations and counter allegations are made against each other.
18. A perusal of the order passed by the learned Sessions Judge granting bail to respondent No.2 cannot be said to be whimsical, capricious or perverse in the facts and circumstances of the case. It is well settled that bail once granted should not be cancelled unless cogent and overwhelming circumstances are made out for an order directing cancellation of bail which was already granted.
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NC: 2023:KHC:29732 CRL.P No. 12569 of 2022 The Hon'ble Apex Court in Dolatram and others vs. State of Harayana reported in (1995) 1 SCC 349 has illustrated the factors which may be considered which are thus: (i) interference or attempt to interfere with the due course of administration of justice, (ii) evasion or attempt to evade the due course of justice, (iii) abuse of the concession granted to the accused in any manner, (iv) possibility of the accused absconding (v) likelihood of misuse of bail
(vi) likelihood of the accused tampering with the evidence or threatening witnesses.
19. Mere allegations that the accused is influential or is capable of tampering the witnesses itself is not a ground to interfere with an order granting bail, unless the allegations are substantiated that after the grant of bail accused has indulged in interfering with the due course of administration of justice and misused the liberty granted to him etc. Cancellation of bail can be justified when there are supervening circumstances after the grant of bail.
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20. It is not in dispute that the criminal proceedings initiated against respondent No.2 has been stayed in Crl.P.No.4514/2013. This petition seeking cancellation of bail having been independently heard and considered, this Court is of the view that no cogent and overwhelming circumstances are made out to set aside the order passed by the learned Sessions Judge. Hence, I proceed to pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE SWK List No.: 19 Sl No.: 1