Karnataka High Court
Nagraj vs State Of Karnataka on 14 June, 2021
Author: K.Somashekar
Bench: K.Somashekar
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 394 OF 2021
CONNECTED WITH
CRIMINAL APPEAL NO. 325 OF 2021
IN CRIMINAL APPEAL NO.394/2021
BETWEEN:
1. Nagraj
S/o. Timmappa
Aged about 49 years
Occ: Head Constable 50
Mayakonda Police Station
R/o behind Durgambika Temple
A.K. Colony, Doddabathi Village
Davanagere Taluk - 577001.
2. Sher Ali
S/o. Md Hayathsab
Aged about 41 years
Occ: Head Constable 236
Mayakonda Police Station
R/o Basaeshwara Extension
Malebennur Village, Harihara
Davanagere Taluk - 577005.
...Appellants
(By Sri. Shankarappa S - Advocate)
2
AND:
1. State of Karnataka
By Mayakonda Police Station
Rep. by SPP
High Court complex
Bangalore - 560 001.
2. Vrundamma
W/o. Marulusidappa
Aged about 43 years
House Wife
R/at Vittalapura Village
Davanagere Taluk
Pin Code:577514.
...Respondents
(By Sri. Thejesh .P, HCGP for R-1;
Notice to R-2 held sufficient vide court
order dated 04.06.2021)
This Criminal Appeal is filed under Section 14A(2)
of Schedule Case and Schedule Tribes Act of 1989,
praying to, set aside the order dated 21.01.2021 passed
by the II-Addl. District and Sessions Judge at
Davanagere for the offence punishable under Sections
341, 342, 302, 306, 201 r/w 34 of IPC and Sections
3(2)(v), 3(2)(v-a) of SC & ST Act; enlarge the appellant on
bail in S.C.No.119/2020 on the file of II-Addl. District
and Sessions Judge at Davanagere for the offence
punishable under Sections 341, 342, 302, 306, 201 r/w
34 of IPC and Sections 3(2)(v), 3(2)(v-a) of SC & ST Act.
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IN CRIMINAL APPEAL NO.325/2021
BETWEEN:
Prakash B
S/o Late G Bassappa
Aged abouto 59 years
Occ: Police Sub Inspector
Mayakonda Police Station
R/o 1934/208 behind TV Station
Chikkammanni Devrajurs Extn.,
Davanagere - 577002.
...Appellant
(By Sri. Shankarappa S - Advocate)
AND:
1. State of Karnataka
By Mayakonda Police Station
Rep. by SPP
High Court complex
Bangalore - 560 001.
2. Vrundamma
W/o. Marulusidappa
Aged about 43 years
House Wife
R/at Vittalapura Village
Davanagere Taluk
Pin Code:577514.
...Respondents
(By Sri. Thejesh .P, HCGP for R-1;
Notice to R-2 held sufficient vide court order
dated 04.06.2021; R-2 served -unrepresented)
4
This Criminal Appeal is filed under Section 14A(2)
of Schedule Case and Schedule Tribes Act of 1989,
praying to, set aside the order dated 21.01.2021 passed
by the II-Addl. District and Sessions Judge at
Davanagere for the offence punishable under Sections
341, 342, 302, 306, 201 r/w 34 of IPC and Sections
3(2)(v), 3(2)(v-a) of SC & /ST Act; enlarge the appellant
on bail in S.C.No.119/2020 on the file of II-Addl.
District and Sessions Judge at Davanagere for the
offence punishable under Sections 341, 342, 302, 306,
201 r/w 34 of IPC and Sections 3(2)(v), 3(2)(v-a) of SC &
Act.
These Criminal Appeals coming on for Admission
through video conferencing this day, the Court delivered
the following:
JUDGMENT
These appeals are filed by Accused Nos.1 to 3
challenging the order dated 21.01.2021 passed by the II Additional District and Sessions Judge at Davangere rejecting the bail petition filed by the accused Nos.1 to 3 under Section 439 of Cr.P.C. in S.C.No.119/2020. Subsequent to rejection of the bail petitions filed by the accused persons, these appeals are filed as contemplated under Section 14-A(2) of the SC/ST (Prevention of Atrocities) amended Act of 2015. 5 Appellants/Accused Nos.1 to 3 are in judicial custody since from the date of their arrest. Therefore, counsel for the appellants in these matters seeking to allow the appeals filed by the accused by setting aside the order passed by the Court below and grant bail by exercising the power under Section 439 of Cr.P.C. as wherein the concurrent jurisdiction is vested with the High Court and so also, with the District and Sessions Judge.
2. Crl.A.No.325/2021 is filed by Appellant namely Prakash.B. who is arraigned as Accused No.1 and Crl.A.No.394/2021 is filed by Appellants namely Nagraj and Sher Ali who are arraigned as Accused Nos.2 and 3 respectively in S.C.No.119/2020 arising out of Crime No.113/2020 of Mayakonda Police Station for the offences punishable under Sections 341, 342, 306, 201 r/w 34 of Indian Penal Code, 1860 beside Sections 3(2)(v) and 3(2)(v-a) of the SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act').
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3. It is relevant to state by referring the FIR which has been recorded by the Mayakonda Police in Crime No.113/2020 on 06.10.2020. Initially the offences lugged against the accused were under Sections 341, 342, 302, 201 r/w 34 of IPC and Sections 3(2)(v) and 3(2)(v-a) of the SC/ST Act. Subsequent to recording the FIR, the IO investigated the case thoroughly and laid the charge sheet against the accused for the offences under Sections 341, 342, 306, 201 r/w 34 of IPC and Sections 3(2)(v) and 3(2)(v-a) of the SC/ST Act against Accused Nos.1 and 3.
4. Heard Sri Shankarappa.S. learned counsel for the appellants who is appearing through video conferencing and learned HCGP for respondent - State who is present before the Court physically in both these appeals.
5. Learned counsel for the appellants has taken me through the complaint filed by one Vrundamma who 7 is none other than the wife of deceased -
Marulusiddappa. He contends that the court below erred in considering the material on record that it is nowhere that the accused Nos.2 and 3 got knowledge that the deceased went to a ladies toilet and even at no point of time no one reached to the police station nor enquired about the deceased with the accused persons. Similar contention has been urged even on the part of Accused No.1 - Prakash.B who is working as Sub- Inspector of Police of Mayakonda Police Station. According to the case of the prosecution that the cause of death of deceased Marulasiddappa, is by partial strangulation. Even the final opinion report is yet to be received, but the offence under Sections 302, 201 IPC has not been made out against Accused No.1 - Prakash and other two accused of their involvement. Accused No.1 is aged 59 years and his service is remaining for few months. He is in judicial custody and even taking into consideration of the charge sheeted materials, there 8 is no direct overt act attributed against the aforesaid accused that they are the cause for the death of deceased Marulasiddappa. Even taking into consideration of the CCTV footages that deceased Marulasiddappa was shifted from police station but it amounts to destroying of evidence. Sections 306 and 201 of IPC are not punishable for death or imprisonment for life and even there is no event to abate these appellants to the deceased for committing suicide or lost his life and there is no question of abating for commission of offence to commit suicide, it is not even prima facie case made out by the prosecution for dwelling into the materials.
6. Having gone through the entire materials available on record no material finds place in the charge sheet that Accused No.1 has got knowledge that the deceased was taken to the police station but it will be known by only CW.45 - Rangaswamy. But accused No.1 had no knowledge about bringing the deceased to 9 the police station and even at no point of time no one reached the police station nor enquired about the deceased with Accused No.1. The only theory is set up to register the crime against the accused persons.
7. On a complaint filed by Vrundamma who is none other than the wife of deceased Marulasiddappa on 06.10.2020 that on 03.10.2020 deceased Marulasiddappa eloped with one Ankitha, D/o Chowdappa and Manjamma resident of Hebbal village about nine day's back and after two to three days she learnt that her husband got married with the said Ankitha. The father of Ankitha had filed a missing complaint before the Davanagere Rural police with regard to missing of her daughter who is aged 18 years. But after 4 to 5 days both deceased Marulasiddappa and Ankita were traced by the elders of his village. The complainant Vrundamma had filed a complaint in Mayakonda Police station alleging that on 03.10.2020 her husband Marulasiddappa eloped with a girl by 10 name Ankitha resident of Hebbal village. It is further alleged that on 05.10.2020 between 9.00 to 9.30 p.m. from the police station Rangaswamy called her over mobile informing that they brought her husband and she was been asked to come to the police station and she told that she won't be able to come at night but she will come in the morning. Thereafter, Siddappa the resident of Huchappanahalli along with him Maharudra, Edaganahalli Nagaraj all these people went to the police station at 12.00 O' çlock in the night hours and they gave bed sheet to her husband. That Accused No.1 - Prakash, Accused Nos.2 and 3 - Nagraj and Sher Ali were working in the night rounds. Accused No.1 alleged to have been told one Rudresh of Hebbal village belonging to the girl asked to call the complainant to come to police station to which she told that she will come in the morning. It is stated in the complaint she sent Maharudrappa, Nagaraja and Manjunatha, S/o 11 Hanumanthappa to the Mayakonda Police Station to provide some food and cloths to her husband.
8. According to the version of brother of deceased CW.7 - Rudrappa, the deceased got married with complainant 27 years back and got a daughter and son. His daughter got married one and a half year back and son of deceased Manjunath died and due to that the complainant and deceased alone were residing and the deceased used to tell that he will get married another lady as he lost his son and 10 to 12 weeks back deceased eloped with Ankitha, D/o Chowdappa and Manjula got married. Hence a complaint came to be filed by the father of Ankitha at Davanagere Rural police station about missing of her daughter and after four to five days both deceased as well as Ankita were traced and secured to Davanagere Rural Police station and issues were got compromised and thereafter the deceased along with Ankitha second wife started residing at Vittalpura at his aunt's house. He did not go 12 to his native place but started residing with second wife at Hucchapanahalli village and due to this, CW.1 - Vrundamma who is none other than the wife of deceased filed a missing complaint on 03.10.2020. In this regard, the Mayakonda police secured the deceased on 05.10.2020 and thereafter at about 9.00 p.m. HC- 110 Rangaswamy said to have called from his mobile 9164255626 to Rudrappa's phone 7026915703 informing that they have brought the deceased to the police station and Vrundamma told that her daughter had delivered a baby and she cannot come right now and she will come in the next day morning on 06.10.2020, the complainant and Rudrappa along with Rudrappa's father, the brothers of the complainant - Nagraj, Subhas and her villagers Shekrappa, Rajappa, Ramappa and Basavaraj had been to Mayakonda police station and found that her husband was not in the police station and she asked about the whereabouts of her husband Marulasiddappa and in the meanwhile 13 they have also learnt that Mayakonda police went to his native place to search the whereabouts of the deceased and when they reached the police station at 1.30 p.m. and asked the police, the police who were at the police station informed that the deceased is not in the police station and another police came and informed that the public had surrounded near the bus stop and asked them to go and see and thereafter all of them went there and found that deceased was lying dead at Hedne Cross bus stand. The statement of CW.8 Manjunatha disclosed that on 02.10.2020 at 6.30 p.m. deceased eloped with Ankitha and got married. But deceased was not present in the native place but remained at Ankita's aunt's house at Huchenahalli village. In this regard, his first wife Vrundamma lodged a complaint on 03.10.2020 in Mayakonda Police in return the Mayakonda police secured the deceased on 05.10.2020 between 02.00 to 03.00 p.m. from his aunt's house and same was informed to him by one Siddappa and then the relatives 14 of the deceased went to the police station in the midnight and requested the police that they are going to bring him the next day morning but they did not send him. One Siddappa who took food and bed sheet from his house and gave the same to the deceased at 11.30 to 12.00 midnight. He further states that on 06.10.2020 at 02.30 p.m. Manjunatha came to know that a dead body was found lying at the bus stop near Mayakonda Railway Station.
9. It is further contended that on 07.10.2020 between 11.20 a.m. to 12.20 p.m. the Doctor who conducted post mortem over the dead body of deceased noticed a ligature mark in the neck which is red in colour and measuring 34 cm in length and it is difficult to measure the width mark as it is faint at its front aspect of the neck and back of the left side of the neck width mark is 1.5 cm to 2 cm and he has opined that death was due to Asphyxia consequent upon partial hanging and he is going to give a final opinion to the 15 cause of death after seeking FSL report. This is the first limb of the arguments advanced by learned counsel for the appellants by challenging the impugned order passed by the Court below in S.C.No.119/2020 rejecting the bail petition filed by the accused persons.
10. The second limb of the arguments which advanced by the learned counsel for the appellants is that the complainant - Vrundamma who is an instrument of the complaint had lodged a missing complaint before the Mayakonda Police Station to trace her husband Marulasidappa as he was in contract with the second marriage with one Ankitha. After receipt of the complaint the case was registered in C.Misc.No.62/2020.
11. It is a settled position of law that several factors which has to be considered for entertaining the petition under Section 439 of Cr.P.C. whether there are any prima-facie materials finds place against the 16 accused in commission of the offence, the nature and gravity of the charges leveled against the accused and severity of the punishment in case of arrival of conviction and so also, the damages that would be caused if the accused is absconding and fleeing away from justice. These are all the important elements for consideration of the bail petition filed by the accused under Section 439 of Cr.P.C. But the case in Crime No.113/2020 though the IO has laid the charge sheet against the accused for the aforesaid offences, but the accused are in judicial custody since from the date of their arrest. The IO has collected the call detail records in CDR and recorded statements of the official witnesses and so also, the independent witnesses. Even though taken into consideration all those statement of the witnesses in the charge sheet but, deceased - Marulasiddappa who alleged to have committed suicide by partial hanging. However, the charge sheet has been lodged against the accused and several witnesses have 17 been cited. Moreover, the accused does not required to be in custody for further investigation as the charge sheet has been laid. Therefore, on consideration of the grounds as urged in these appeals, seeking to allow the appeals by setting the order passed by the Court below in S.C.No.119/2020 rejecting the bail petition filed by the accused persons. Consequently, the petitions filed under Section 439 has taken into consideration as there is a concurrent jurisdiction of the High Court as well as the Sessions Court for grant of bail. The accused persons are ready to abide by any terms and conditions that may be imposed by this Court while granting bail to the accused persons.
12. On the other hand, learned HCGP has taken me through the charge sheet materials wherein it discloses that deceased Marulusiddappa had sustained anti-mortem injuries found on his body and the same has been noticed by the Judicial Magistrate as where the inquest over the dead body has held even in the 18 present of the panch witnesses. But the statement of witnesses which has been recorded by the IO during the course of investigation and even the materials such as CCTV footages goes to show that prima-facie case has been made out against Accused Nos.1 to 3 for the offence under Section 306 of IPC. Moreover, the accused does not deserve for relief of bail as they have caused for the death of Marulusiddappa. That on 05.10.2020 at around 9.30 pm, the police personnel of Mayakonda Police Station called complainant - Vrundamma to come to the police station but she expressed her inability as there was information to her that they have secured her husband deceased - Marulusiddappa. She had sent the food, blanket and other materials through Siddappa, Maharudra, Edaganahalli Nagaraj and all these people went to police station at 12.00 p.m. and they gave bed sheet to her husband. The police called the complainant to come to the police station but she declined to go there as it was 19 night hours. But on the next day when Vrundamma and her relatives had been to Mayakonda police station and made enquiry about her husband that Accused No.1 - Prakash who was the Sub-Inspector had informed her that he was suffering from chest pain so he was sent back and again he had told the complainant that her husband died due to consumption of poison. Subsequent to getting the information about the death of Marulusiddappa that complainant - Vrundamma and her relatives all of them went and saw her husband was found lying at bus stand. The dead body was brought to the police station which was in the manner of sound sleep. Therefore, complainant - Vrundamma had suspected about the conduct of police personnel of Mayakonda police station that too be accused Nos.1 to 3. Consequent upon filing of the complaint by her, the crime came to be registered and law was set into motion and thereafter, the IO investigated the case thoroughly and laid the charge 20 sheet against the accused persons. In the charge sheet the offence under Section 306 of IPC was lugged against the accused persons including Sections 341, 342, 201 r/w 34 of IPC beside Section 3(2)(v) and 3(2)(v-a) of the SC/ST Act. However, there are strong prima-facie materials against accused Nos.1 to 3 who are the cause for the death of deceased - Marulusiddappa and moreover violated the guidelines issued by the Hon'ble Supreme Court that no person shall be detained in the police station without any complaint in a non- cognizable offence. However, the IO has laid the charge sheet against the accused in Crime No.113/2020 and cited witnesses as CWs.1 to 68. Sri Giri.K.C., the DSP who laid the charge sheet and cited as witness by recording the statement of certain witnesses and so also secured material documents that the accused are the cause for death of deceased - Marulusiddappa who committed suicide due to some sort of harassment which caused by these accused persons which was not 21 tolerated by him. These are all the contentions as taken by learned HCGP for the State and seeking for dismissal of these appeals by confirming the impugned order rendered by the Court below in S.C.No.119/2020.
13. It is in this context of the contentions as taken by the learned counsel for the accused Nos. 1 to 3 respectively and so also, counter made by learned HCGP for the State by referring the FIR said to have been recorded by the Mayakonda Police in Crime No.113/2020. However, based upon the complaint filed by Vrundamma who is cited as witness in the charge sheeted case initially the offence under Section 341, 342, 302, 201 r/w 34 of IPC and Sections 3(2)(v), 3(2)(v-
a) of the SC/ST (Prevention of Atrocities) Act, 1989 were lugged against the accused persons. But in the charge sheet laid by the IO the offence under Sections 341, 342, 306, 201 r/w 34 of IPC beside Sections 3(2)(v), 3(2)(v-a) of the SC/ST (Prevention of Atrocities) Act, 1989 was lugged against the accused. It is relevant to 22 refer certain materials which finds place in the charge sheet laid by the IO. There is no dispute that Vrundamma who is none other than the wife of deceased - Marulusiddappa had filed a complaint before the Mayakonda Police Station on 03.10.2020. But deceased - Marulusiddappa was secured by the police on 05.10.2020. But on the next day during the noon hours the dead body of Marulusiddappa was found lying near Hedne Cross Bus stand area. Therefore, she suspected the death of her husband and based upon her complaint the case in Crime No.113/2020 came to be registered by the Mayakonda Police Station and proceeded with the case for investigation and thoroughly investigation was done and charge sheet came to be laid against the accused persons.
14. CW.2 - Ramachandrappa and CW.3 Nagaraja were secured as panch witnesses on 07.10.2020 and on verification of the spot where the deceased alleged to have committed suicide and drew the mahazar. On 23 05.10.2020 during the night the mahazar was drawn by the investigating agency and also subjected the CCTV, NVR and the copy of the same got it through the pen drive and the same was seized in the presence of panch witnesses.
15. CW.26 - Kum.Ankita, D/o Chowdappa aged 18 years is said to have been the second wife of deceased - Marulusiddappa and her marriage was performed with him on 25.09.2020. Since 03.10.2020 to 05.10.2020 deceased - Marulusiddappa was staying at Huchena halli along with this witness. She has given statement before the investigating agency during the course of investigation and also stated about the incident occurred as where she got married with him despite of his first wife Vrundamma who has got a daughter through her husband Marulusiddappa.
16. CW.27 - Chowdappa and CW.28 - Manjamma are the parents of CW.26 Kum.Ankita. They have stated 24 in their statement that their daughter got 2nd marriage with deceased - Marulusiddappa on 25.09.2020. A complaint came to be filed by him that his daughter was missing and later came to know that she got 2nd marriage with deceased - Marulusiddpapa. They were staying at his aunt's house who is CW.23 - Rangamma at Huchenahalli.
17. CW.46 - Parashuramappa who is CHC -269 of Davanagere Rural Police Station has given statement before the IO stating that deceased - Marulusiddappa got second marriage with Kum.Ankitha and also spoken about the missing of Ankita and registered the missing complaint in Crime No.232/2020 on 28.09.2020. She has given the statement before the investigating agency in the aforesaid crime on 01.10.2020 that she got married with deceased - Marulusiddappa and her parents also given statement on the same day and case in Crime No.232/2020 came to be closed on 01.10.2020 based upon their statement.
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18. Though the IO has laid the charge sheet after thorough investigation and cited witnesses as CWs.1 to 68, but the allegation made in the complaint filed by Vrundamma, w/o Marulusidappa that her husband Marulusiddappa has eloped with Ankitha of Hebbal about 9 days back and they were going to contract with second marriage. Therefore, said Vrundamma gave complaint before the Mayakonda Police Station. Based upon her complaint the criminal law was set into motion. But the officials of Mayakonda Police Station i.e., Accused Nos.1 to 3 brought Marulusiddappa to the said police station to make some enquiry about the incident which was narrated by the complainant. But on 05.10.2020 at around 9.30 p.m., they gave information to Vrundamma about bringing the deceased
- Marulusiddappa to police station and informed her to come to police station, but she expressed her inability as it was late night. But Accused Nos. 1 to 3 were on duty on the night of 05.10.2020, on the next day, they 26 informed Vrundamma who came to the police station along with her relatives to make inquiry about her husband Marulasiddappa and accused No.1 being the Sub-Inspector informed her that her husband died by consuming poison. Suspecting the death of her husband, she lodged a complaint which came to be registered against the accused in Crime No.113/2020 for the offences as reflected in the FIR. Thorough investigation has been done by I.O and chargesheet came to be laid against the accused persons by inserting offence Section 306, 341, 342, 201 r/w 34 of IPC beside Sections 3(2)(v), 3(2)(v-a) of the SC/ST Act. CW.1 had given the statement as contemplated under section 164 of Cr.P.C. before the Judicial Magistrate of First class stating that she came to know that the police staff in Mayakonda Police station informed her that her husband had consumed poison and found lying in the bus stand at Hedne Cross.
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19. CW.19 - Harisha, s/o Anjinappa had given statement before the IO stating that on 03.10.2020 at around 9.00 p.m. while he was present in the house his friend namely Sanjay Kumar had come to his house and said to come along with him in H.F.Deluxe vehicle for eating egg rice. While he coming back, near the land of Hanumantappa, the vehicle got skid and both of them fell down. But on 05.10.2020 at around 12.30 p.m. police personnel of Mayakonda Police station had brought a person aged 45 years to the police later he came to know that his name was Marulusiddappa and he was with him till 12.00 hrs in the midnight, but at 11.00 pm. the relatives of Marulusidappa had come to police station to give some food and bed sheet to him. But in the wee hours i.e., 05.15 a.m. when he got up and saw that Marulusiddappa was not there in the police station.
20. Whereas in Crime No.113/2020 the IO has thoroughly investigated the case and laid the charge 28 sheet against the accused persons. The autopsy over the dead body was conducted by Doctor and it was opined that the death of deceased was due to Asphyxia consequent upon partial hanging. However, the final cause of death can be furnished after obtaining the report from FSL. However, these accused persons have been suffering from ailments such as Diabetes and gastric problems. Accused Nos. 1 to 3 were part of the investigation in some of the cases. Therefore, the jail authorities have been seeking shifting of these accused persons to Shimoga Jail. Consequently, they have been shifted to Shimoga Jail from Davanagere.
21. Whereas in this appeal, it is relevant to refer Section 14(A) of the SC/ST (Prevention of Atrocities) Act, 1989 which reads as under:
"14A. (1) Notwithstanding anything contained in the Code of Criminal Procedure,1973, an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.29
(2) Notwithstanding anything contained in sub-
section (3) of section 378 of the Code of Criminal Procedure, 1973, an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail. (3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:
Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.
(4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.".
22. The appeal thereby meaning continuation of trial. Even an appeal or revision is the continuation of the original case. Even if it is to say that the appeal is continuation of the proceedings and the accused arraigned in the criminal proceedings continues to be so till the proceedings come to a final conclusion. Whereas 30 the word 'trial' was expressly to include an appeal. Even the word 'trial' in that provision of a special enactment it includes also proceedings in an appeal and whereby challenging the order passed by the trial Court in S.C.No.119/2020 where the petition filed by the accused persons under Section 439 of Cr.P.C. came to be rejected, hence, the present appeals have been preferred by them. Therefore, it is said that the appeal is continuation of the original case.
23. Further, it is relevant to refer Section 439 of Cr.P.C. which reads as under:
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-
section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or 31 modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
24. Whereas, under Section 439 of Cr.P.C. special power has been vested with the High Court and so also, the Court of Sessions regarding grant of bail. But there is no absolutely want of jurisdictional competency for the High Court to consider and exercise the power in a petition filed under Section 439 Cr.P.C. but concurrent jurisdiction is given to the High court and so also, the Sessions court. But in the instant appeals, appellants/accused Nos.1 to 3 have preferred the appeals in pursuance of Section 14-A(2) of the SC/ST (Prevention of Atrocities) amendment Act, 2015 by 32 challenging the impugned order passed by the trial Court. Therefore, the concurrent jurisdiction in respect of the bail petition has to be filed by the accused persons in continuity of the proceedings in an ambit of an appeal which has been preferred in these appeals. Consequently, these appeals have been dwelling into the materials which has been secured by the IO during the course of the investigation in order to laying of the charge sheet against the accused by complying the stipulated conditions as under Section 173(2) of Cr.P.C. within stipulated period of filing of charge sheet against the accused. But the IO has laid the charge sheet against the accused which consisting of several witnesses such as CWs.1 to 68. Though there are sufficient materials for laying the charge sheet against the accused but the prosecution has to establish guilt of the accused by facilitating the worthwhile evidence by subjecting to examine the material witnesses based upon the materials secured by the IO during the course 33 of investigation. When the charge sheet has been laid against the accused by collecting so much of the materials and finds place in the records but it cannot be said that those materials are enough to decline the relief of bail as sought for by accused Nos. 1 to 3. It is the domain vested with the prosecution to establish the guilt against the accused persons by facilitating the worthwhile evidence for securing conviction. But mere filing of the charge sheet against the accused even for the offences under the special enactment of SC/ST (Prevention of Atrocities) Act, 1989 and so also, the offence under the provisions of Indian Penal Code cannot be held that the accused are not deserving for bail. But in the instant case, the major offence is under Section 306 of IPC in addition to other offences. But the accused are in judicial custody since from the date of their arrest and moreover, the investigating agency has laid the charge sheet against the accused by collecting so much of materials and so also recording statement of 34 several witnesses which cited in the charge sheet laid by the IO. Therefore, it cannot be said that the materials are enough for rejecting the bail petition filed by Accused Nos.1 to 3. However, in the instant case the petition which is filed seeking regular bail has been rejected by the trial Court and the same has been challenged under these appeals in pursuance of the provision under Section 14-A(2) of the SC/ST (Prevention of Atrocities) amended Act, 2015. These appeals are preferred by challenging the impugned order passed by the trial Court in SC No.119/2020 dated 21.01.2021, it cannot be precluded them for entertaining the same petition for granting bail when it has been restored. However, keeping in view the contention made by learned counsel for the appellants in these appeals, it is said that there are substances in the contentions of learned counsel for the appellants seeking regular bail by consideration of the same petition filed by them under Section 439 of Cr.P.C. 35 However, in a given peculiar facts and circumstances of the case, it is deemed appropriate to state that the appellants/accused Nos.1 to 3 are entitled to be enlarged on bail by exercising the concurrent jurisdiction vested with the High Court under Section 439 of Cr.P.C,. Therefore, in terms of the aforesaid reasons as well as in a given peculiar facts and circumstances of the case, it is deemed appropriate to interfere with the impugned order passed by the Court below. Accordingly, I proceed to pass the following:
ORDER The appeals preferred by the appellants/Accused Nos.1 to 3 are hereby allowed. Consequently, the order passed by the II Addl.District and Sessions Judge, Davanagere in S.C.No.119/2020, dated 21.01.2021 is hereby set-aside.
Consequent upon consideration of these appeals, it is appropriate to state that the petition under Section 36 439 of Cr.P.C. having it's concurrent jurisdiction of the High Court as well as the Sessions court to exercise the power for consideration of bail filed by the accused which is their statutory right. Accordingly, the appellants/accused Nos.1 to 3 are entitled for bail under Section 439 Cr.P.C. subject to the following conditions:
i) Appellants/Accused Nos.1 to 3 shall execute a bond in a sum of Rs.1,00,000/- each, with likesum surety to the satisfaction of the II Addl.District and Sessions Judge, Davanagere in S.C.No.119/2020 within a period of three weeks from the date of this order.
ii) Appellants/Accused Nos.1 to 3 shall not
tamper or hamper the case of the
prosecution witnesses.
iii) Appellants/Accused Nos.1 to 3 shall not
indulgence with any criminal activities
henceforth.
37
iv) Appellants/Accused Nos.1 to 3 shall appear before the Court of law on all the dates of hearing without fail.
If the accused violates any of the conditions stated above, the bail order shall automatically stand ceased.
Sd/-
JUDGE DKB