Karnataka High Court
Karabasappa vs State Of Karnataka on 28 March, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.100067/2022
BETWEEN:
KARABASAPPA S/O. NINGAPPA KODIHALLI
AGED ABOUT 24 YEARS, OCC: COOLIE
R/O. YATTINAHALLI, TQ & DIST: HAVERI-581193.
...APPELLANT
(BY SHRI ARAVIND D.KULKARNI., ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH RURAL POLICE STATION
HAVERI, REP BY STATE PUBLIC
PROSECUTOR, HIGH COURT OF
KARNATAKA, DHARWAD-580001.
2. SMT. MANGALAVVA W/O. SHEKHAPPA
DODDAMANI, AGE:MAJOR
OCC. HOUSEHOLD WORK
R/O. KOUDI KALLAPUR VILLAGE
TQ AND DIST. HAVERI-581102.
...RESPONDENTS.
(BY SMT. GIRIJA HIREMATH, HCGP, FOR R.1;
NOTICE TO R1-SERVED)
THIS CRIMINAL APPEAL IS FILED U/S 14 (A) (2) OF SC/ST
(POA) ACT, SEEKING TO SET ASIDE THE ORDER DATED
27.01.2022 PASSED BY I ADDITIONAL DISTRICT & SESSIONS
JUDGE & SPECIAL JUDGE, AT HAVERI IN SPL. SC/ST NO.27/2021,
& ENLARGE THE APPELLANT ON BAIL IN CRIME NO.0053/2021,
HAVERI RURAL P.S.) REGISTERED FOR THE OFFENCES
PUNISHABLE U/S 302 OF IPC AND SECTION 3(1)(r), 3(2)(v),
3(2)(va) OF THE SC/ST (PA) AMENDMENT ACT, 2015, IN THE
INTEREST OF JUSTICE AND EQUITY.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.03.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed under section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Act 1989' for short), challenging the order dated 27.01.2022 passed by the I Addl. District and Sessions Judge Spl. Judge, Haveri, in Spl.SC/ST.No.27/2021, dismissing the petition filed under Section 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), arising out of Crime No.53/2021 of Haveri Rural P.S., registered for the offences punishable under sections 302 of the Indian Penal Code, 1860 and under Section 3(1)(r), 3(2)(v) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 ('the Amendment Act', for short).
2. It is alleged by the prosecution that the daughter of complainant by name Shilpa was married to one Mr.Prabhu Bidari. The said Prabhu left her daughter. Thereafter, she was residing in complainant's house. She met with the accused at Hukkerimath fair in the month of January 2021. They loved 3 with each other and developed physical contact. It is further alleged that appellant-accused had also come to their village for 2 to 3 times and assured that he will marry her daughter. Thereafter, she came to know that the appellant-accused refused to marry her daughter. It is further alleged that on 21.04.2021 her daughter went to Yattinahalli village to meet the appellant-accused, but she did not return. On the next day one Fakkiresh, who is son-in-law of complainant informed over phone that her daughter's dead body was found in the Karjagi forest building. Immediately, she went there and found her daughter's dead body. She suspected that somebody had thrown stone on her daughter's head and committed the murder. It is alleged that she came to know that on 21.04.2021 the deceased was quarrelling with the accused and the accused took her daughter on a motorcycle belonging to one Shivanand to Karjagi forest area. There he committed the murder of Shilpa. The police investigated the matter. It is the case of prosecution that the deceased was demanding money from accused, but he refused to give her any money. It is stated that the deceased belongs to schedule caste and accused is not ready to marry the 4 deceased, as he is belongs to II-A category. For this reason, deceased abused the accused. The petitioner-accused took her to the Karjagi forest area and assaulted with a stone and caused her death. Accordingly, the police arrested the accused on 22.4.2021. After completion of investigation, police have filed the charge sheet against the accused for the above said offences.
3. Heard Shri Aravind D.Kulkarni, the learned counsel for the appellant and Smt. Girija Hiremath, learned High Court Government Pleader for the respondent-State.
4. Learned counsel for the petitioner argued that the appellant is innocent and he has not committed any offences. The complaint came to be filed on the next day of incident. There are no eye witnesses to the incident. The entire case is based on the alleged circumstantial evidence. According to the prosecution, alleged extra-judicial confession is made in the bus-stand where 3-4 persons were standing who are neither his relatives nor confidential persons of petitioner- accused. It creates doubt about involvement of the accused. It is also alleged that, the deceased is a married women and she has not divorced her husband. So the contention of 5 complainant that this petitioner refused to marry her daughter, is without any basis and a false and concocted story is narrated. The alleged bike does not belong to petitioner-accused. The panchanama also shows that there is no recovery of any incriminating articles from accused. The cause of death is head injury. The cloths of the accused are not all blood stained.
5. Learned counsel for the petitioner relied upon the decisions of Hon'ble Supreme Court in the case of Sanjay Chandra Vs Central Bureau of Investigation reported in (2012) 1 Supreme Court Cases 40, wherein it is held in para No.21 to 23, which reads as under;
21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending 6 completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
6. The Hon'ble Supreme Court in the case of Sanjay Chandra Vs Central Bureau of Investigation (supra) referred the following cases.
(1) (2012) 1 SCC 65, (Between Sharad Kumar Vs CBI).
(2) AIR 1950 SC 27, (Between A.K.Gopalan Vs State of Madras).
7(3) (1978) 1 SCC 118: (Between Gurcharan Singh Vs State (Delhi Admn)) (4) (1978) 1 SCC 240: (Between Gudikanti Narasimhulu Vs Public Prosecutor).
(5) (1978) 4 SCC 47: (Between Moti Ram Vs State of M.P.) (6) (2001) 6 SCC 338: (Between Puran Vs Rambilas.) (7) (2011) 1 SCC 694: (Between Siddharam Satlingappa Mhetre Vs State of Maharashtra.)
7. Learned counsel also relied upon the decision of Hon'ble Supreme Court in the case of Sharad Kumar and Others Vs Central Bureau of Investigation reported in (2012) 1 Supreme Court Cases 65, which states principles regarding grant of bail.
8. Learned counsel also relied upon the decision of Hon'ble Supreme Court in the case of Dataram Singh Vs State of Uttar Pradesh and Another reported in (2018) 3 Supreme Court Cases 22, wherein it is held in para Nos.1 to 6, which reads as under;
Leave granted. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on 8 an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is 9 not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973.
4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra v. King-Emperor that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal 10 interpretation to the provision for bail is almost a century old, going back to colonial days.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
9. Learned High Court Government Pleader argued that the investigation is already completed and charge sheet is filed. There is prima-facie material to show that the petitioner has committed the offence as alleged against victim. It is further argued that if the petitioner-accused is released on bail, he may abscond and may not appear before the Court. Therefore, learned HCGP prays to reject the bail petition.
10. Admittedly, in this case according to the complainant the deceased is a married women and she left her husband. As per the charge sheet, both the accused and deceased loved each other. They have physical relationship also. On 21.4.2021, the complainant's daughter went to Yattinahalli village to meet the accused as he was refusing to 11 marry her stating that she belongs to lower caste. It is only on the next day, evening the complaint came to be lodged. The entire case of prosecution is based on the alleged circumstantial evidence and extra- judicial confession statement stated to have been made by the accused. The alleged witness before whom the accused made confession statement were standing near bus-stand. The accused confessed before them on 24.2.2021 at 9:00 am about committing murder of deceased. Learned counsel stated that this is very difficult to believe at this stage that as a person confess before unknown person, who are not related to him nor having any confidence that too in a public place i.e., bus stand at morning at 9:00 am. Learned counsel also drawn attention of the Court regarding seizer panchanama of cloths, wherein it is mentioned that the cloths alleged to have been seized are not at all blood stained, as per panchanama dated 23.04.2021. Even the motorcycle on which he is stated to have taken the deceased does not belongs to accused.
11. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, in view of the principles stated in the above 12 referred decisions that mainly the Court will have to take into consideration;
(1) the nature and seriousness of the offence; (2) character of the accused;
(3) circumstances which are peculiar to accused;
(4) reasonable probabilities of presence of the accused not being secured at trial;
(5) reasonable apprehension of witnesses being tampered with; and (6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence.
12. So in the light of above principles, if the material placed before Court are considered, it is evident that there are no criminal antecedents against the petitioner. There is no material to show at this stage that he is influential person so as to tamper the prosecution witnesses. On the other hand, it is contended that he has fixed place of residence and is ready to abide by conditions to be put by Court for his release. As already stated, the material placed by the prosecution regarding extra-judicial confession, recovery of the cloths and the bike, are required to be proved. Keeping in mind, the nature of offences, role of the accused and material 13 placed by the prosecution, in my considered view at this stage, the petitioner-accused has made out sufficient ground to enlarge him on bail. The apprehension of prosecution that petitioner may abscond and may tamper the prosecution witnesses, can be meted out by imposing reasonable conditions. Therefore, the petitioner-accused is entitled to be enlarged on bail. Accordingly, I proceed to pass the following:
ORDER
1. The criminal petition filed under section 439 of Cr.P.C. is allowed.
2. The petitioner/accused by name Karabasappa S/o Ningappa Kodihalli, R/o Yattinahalli, Tq & Dist: Haveri, in Crime No.0053/2021 of Haveri Rural Police Station, pending in Spl.SC/ST Case No.27/2021 on the file of I Addl. District and Session Judge and Special Judge., Haveri, registered for the offences punishable under sections 302 of the Indian Penal Code, 1860 and under Section 3(1)(r), 3(2)(v) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, shall be released on bail, subject to the following conditions. 14
i) The petitioner/accused shall execute a self bond for Rs.1,00,000/- with two solvent sureties for the like sum, to the satisfaction of the trial or committal Court where the case is pending.
ii) The petitioner shall not try to tamper the prosecution witnesses directly or indirectly.
iii) The petitioner shall not leave the jurisdiction of the trial Court without its permission.
iv) The petitioner shall furnish authenticated documents in proof of his residential and correct address and shall inform the Court/Police if there is any change in the address and furnish his mobile phone number/numbers to Court and I.O.
v) The petitioner shall not involve in any criminal activities and shall not commit similar offences.
vi) The petitioner shall appear before the Court on all dates of hearing without fail unless his presence is dispensed.
vii) The trial Court must be meticulously verify the documents of sureties and take their 15 photos and also after satisfying their solvency, shall accept the said sureties.
In case if any of the condition is violated, the prosecution is at liberty to move application for cancellation of bail.
SD/-
JUDGE Am/-