Karnataka High Court
Smt. Maitra W/O. Lt. Basavaraj ... vs The State Of Karnataka on 25 January, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:1837
CRL.P No. 102934 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO. 102934 OF 2023 (439(2) )
BETWEEN:
SMT MAITRA W/O. LT. BASAVARAJ NAVARANGI,
AGE: 43 YEARS, OCC. HOUSEWIFE,
R/O. KADAPATTI TALUKA,
JAMAKHANDI, DIST. BAGALKOTE.
...PETITIONER
(BY SRI L. S. SULLAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH CIRCLE POLICE INSPECTOR,
JAMAKHANDI,
R/BY HCGP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
2. MAHALINGAPPA S/O. SHANKARAPPA KOTAGI,
AGE: 55 YEARS, OCC. BUSINESSMAN,
R/O. LINGANUR TALUKA, JAMAKHANDI,
DIST. BAGALKOTE.
Digitally
VIJAYALAXMI signed by
M BHAT VIJAYALAXMI
...RESPONDENTS
M BHAT
(BY SRI RANGASWAMY R., HCGP FOR RESPONDENT NO.1)
(BY SRI N. L. BATAKURKI, ADVOCATE FOR RESPONDENT NO.2)
THIS CRIMINAL PETITION IS FILED U/SEC. 439(2) OF
CR.P.C. SEEKING TO CANCEL THE BAIL GRANTED TO
RESPONDENT NO.2 VIDE ORDER DATED 21.09.2023 IN CRL.
MISC.NO.5256/2023 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOTE SITTING AT JAMAKHANDI IN
JAMAKHANDI TOWN POLICE STATION CRIME NO. 78/2023
U/SEC.302, 504 OF IPC AND SET ASIDE THE BAIL ORDER DATED
21.09.2023 IN CRL.MISC NO. 5256/2023 PASSED BY THE I
ADDL. DISTRICT AND SESSION COURT JUDGE, BAGALKOTE,
SITTING AT JAMAKHANDI IN FAVOUR OF RESPONDENT NO.2 AND
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NC: 2024:KHC-D:1837
CRL.P No. 102934 of 2023
RESPONDENT NO.2 BE COMMITTED TO CUSTODY PENDING
DECISION OF THE CASE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition under Section 439(2) of Cr.P.C. is filed by de-facto complainant with a prayer to set aside the order dated 21.09.2023 passed by the Court of I Additional District and Sessions Judge, Bagalkot sitting at Jamkhandi in Criminal Miscellaneous No.5256/2023 and cancel the bail granted to the 2nd respondent herein in Crime No.78/2023 registered by Jamakhandi Town Police Station, Bagalkot District for the offences punishable under Sections 302 and 504 of IPC.
2. Heard the learned counsel for the parties.
3. FIR in Crime No.78/2023 was registered by Jamkhandi Town Police Station, District Bagalkot for the aforesaid offences against the 2nd respondent on the basis of complaint of Smt. Maitra W/o. deceased-Basavaraj. -3-
NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023
4. During the course of investigation, the 2nd respondent herein was arrested on 19.05.2023 and remanded to judicial custody. Investigation in the case is completed and charge sheet was filed on 27.06.2023. Bail application filed by the 2nd respondent before the Court of I Additional District and Sessions Judge, Bagalkot sitting at Jamkhandi in Criminal Miscellaneous No.5256/2023 was allowed on 21.09.2023. Being aggrieved by the same, the de-facto complainant is before this Court.
5. Learned counsel for the petitioner/de-facto complainant submits that the learned Sessions Judge was not justified in granting the bail to the 2nd respondent, who has committed heinous offence punishable under Section 302 of IPC. He submits that learned Sessions Judge has failed to take into consideration the gravity of offence. The deceased has suffered seven injuries on his body and the 2nd respondent had a strong motive to commit his murder. He submits that the learned Sessions Judge was not justified in observing that the alleged act of respondent -4- NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 No.2 would only amount to offence under Section 304 Part-II of IPC and not offence punishable under Section 302 of IPC. He accordingly, prays to allow the petition. In support of his arguments, he has placed reliance on the Judgments of Hon'ble Supreme Court in the case of Virupakshappa Gouda and Another vs. The State of Karnataka and Another, reported in (2017) 5 SCC 406 and in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and Another, reported in 2005(2) SCC 42 and on the order passed in Criminal Petition No.611/2022 by this Court dated 01.02.2022.
6. Per contra, the learned counsel for respondent No.2/accused has argued in support of the impugned order. He submits that there is no allegation against respondent No.2 that he has misused the bail order or that he has tried to tamper with the prosecution witnesses. He submits that respondent No.2 is an aged person without any antecedents. He had a serious grievance against his co-brother, who is the deceased in the present case, -5- NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 because he was supporting his sons as against whom the petitioner was fighting litigation. He accordingly, prays to dismiss the petition.
7. The de-facto complainant has approached this Court challenging the order passed by the learned Sessions Judge granting bail to respondent No.2 herein mainly on the ground that the learned Sessions Judge has failed to appreciate the gravity of offence and also on the ground that the learned Sessions Judge was not justified in giving a finding that the alleged act of respondent No.2 at the most would amount to an offence under Section 304 Part-II of IPC and not offence under Section 302 of IPC.
8. Respondent No.2 is married to Vijayalaxmi, who is the younger sister of complainant. Since complainant's husband deceased-Basavaraj Navarangi had no children from his first wife i.e., namely complainant, he also had married Rajashree, who is the younger sister of complainant and from the said wedlock, they have three children. Respondent No.2 has three children from his wife -6- NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 Vijayalaxmi. Children of the respondent No.2 are well settled but they were not providing any maintenance to their parents. Respondent No.2 had therefore initiated proceedings against them seeking maintenance.
9. Respondent No.2 had a grievance that deceased was supporting his children. Wife of respondent No.2 had suffered a fracture injury on her neck and therefore she had gone to her sons' house and thereafter she was staying there. Respondent No.2 allegedly had grievance against his brother-in-law i.e., deceased-Basavaraj Navarangi since he was supporting his children will whom he had some difference of opinion. It is in this background on 18.05.2023, respondent No.2 came to the place where the deceased was sitting and after the 2nd respondent and deceased had some altercations, respondent No.2 allegedly stabbed him with a knife. Immediately, CW-6 and 7 had intervened.
10. Postmortem report would go to show that there are seven injuries on the body of the deceased. Injury -7- NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 No.1 is a stab injury caused as a result of assault by the 2nd respondent on the abdomen of the deceased. Injury Nos.3 to 5 are ancillary injuries to injury No.1. Injury No.6 is found on the left hand of deceased. Injury No.7 is contusion over the right side of nose of the deceased. Therefore, injury No.1, 6 and 7 are the only three injuries which were found on the body of the deceased and same is evident from the postmortem report of the deceased. Except injury No.1, the other two injuries are simple in nature. Considering this aspect of the matter, the Trial Court had proceeded to enlarge the respondent No.2 on bail. Respondent No.2 is an agriculturist aged about 62 years. Undisputedly, he has no criminal antecedents. Trial Court has enlarged respondent No.2 on bail only after the investigation in the case was completed. Though, there are alleged eyewitnesses to the incident in question, considering the back ground in which the alleged incident in question had taken place and also taking into consideration that only one grievous injury was caused by the 2nd respondent on the deceased, the Trial Court has -8- NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 proceeded to enlarge the respondent No.2 on bail. This approach of the Trial court cannot be said to be totally illegal, unreasonable or perverse.
11. From a reading of the impugned order, it is seen that all relevant materials has been taken into consideration by the Trial court while granting bail to respondent No.2. CW.6 and CW.8 who are alleged witnesses are not from the very same village where respondent No.2 is residing nor are they his relatives. Therefore, there cannot be any apprehension that he has likely to tamper with the crucial eyewitnesses.
12. The Judgment in the case of Kalyan Chandra Sarkar's (supra) was rendered by the Hon'ble Supreme Court in a case where the successive bail application of the accused was allowed without appreciating the gravity of offence and earlier orders passed rejecting the bail applications of the accused. In the case of Virupakshappa Gouda's (supra), bail was granted to the accused in a heinous case of murder only on the ground that charge -9- NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 sheet was filed and therefore, there is a changed circumstance. In the said case, deceased had married the daughter of accused against his wishes. It is in this background, the accused persons had assaulted him when he had returned to his village. The facts and circumstances, in the aforesaid cases are totally different and therefore, the Judgment in the case of Kalyan Chandra Sarkar's and in Virupakshappa's case (supra) cannot be made applicable to the present case. It is trite that Judgments can be relied as precedents only in the event the same are applicable to the facts and circumstances of the case on hand.
13. In the case of Dinesh T., vs State of Karnataka, Criminal Petition No.611/2022, a coordinate bench of this Court has observed that Court while considering the bail application should not decide whether the alleged offence false under Section 302 of IPC or under Section 304 Part- II of the IPC and same is a matter of trial. I am in respectful agreement with the view expressed by the co-
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NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 ordinate bench of this Court in the case of Dinesh's (supra). But merely for the reason that the learned Sessions Judge has made an observation that the alleged act of the 2nd respondent would not amount to an offence under Section 302 of IPC, but the same may amount to an offence punishable under Section 304 Part-II of IPC, the same cannot be a ground for canceling the bail granted to respondent No.2/accused, if it is found that on the merits of the case he had otherwise made out a case for granting bail. It is suffice if a clarification is made that the observations to the said effect made by the learned Sessions Judge would not be taken into consideration by the Trial Court while considering the case of the prosecution on its merits. Accordingly, the following :
ORDER The Criminal Petition is dismissed. The observation made by the learned Sessions Judge while allowing Criminal Miscellaneous No.5256/2023 vide order dated 21.09.2023 to the effect that the offence
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NC: 2024:KHC-D:1837 CRL.P No. 102934 of 2023 committed by respondent No.2 at the most would fall within the ambit of Section 304 Part-II of IPC and not amount to an offence punishable under Section 302 of IPC shall not be taken into consideration by the trial Judge before whom respondent No.2 would be tried for the charge sheeted offences.
Sd/-
JUDGE CKK List No.: 1 Sl No.: 16