Karnataka High Court
Sri. Suresh H.L vs State Of Karnataka on 16 July, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:27365
CRL.P No. 927 of 2023
C/W CRL.P No. 9417 of 2023
CRL.P No. 9465 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2024 R
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 927 OF 2023 (439)
C/W
CRIMINAL PETITION NO. 9417 OF 2023 (439)
CRIMINAL PETITION NO. 9465 OF 2023 (439)
IN CRIMINAL PETITION NO. 927 OF 2023
BETWEEN:
SRI AMIT DIGVEKAR
S/O RAMACHANDRA BIKAJI DEGWEKAR,
AGED ABOUT 40 YEARS,
R/AT NO.241, KALNE GRAM,
DOOD MARG TALUK,
SHINDHUDHURG DISTRICT,
MAHARASHTRA-416 510
...PETITIONER
(BY SRI BASAVARAJ SAPPANNAVAR.K. &
Digitally SRI K. CHANDRA MOHAN, ADVOCATES)
signed by
SHILPA R
TENIHALLI AND:
Location:
HIGH
COURT OF STATE OF KARNATAKA
KARNATAKA
RAJARAJESHWARI NAGAR P.S,
BY SPECIAL INVESTIGATION TEAM,
CARLTON HOUSE,
BENGALURU
IN CR NO.221/2017
BY SPECIAL PUBLIC PROSECUTOR (SPP)
HIGH COURT,
BENGALURU-560 001.
...RESPONDENT
(By SRI NAIK ASHOK NARAYAN, SPL. PP.)
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NC: 2024:KHC:27365
CRL.P No. 927 of 2023
C/W CRL.P No. 9417 of 2023
CRL.P No. 9465 of 2023
THIS CRL.P IS FILED U/S. 439 CR.PC PRAYING TO GRANT
BAIL TO THE PETITIONER IN CRIME.NO.221/2017 REGISTERED
BY THE RAJARAJESHARI POLICE STATION, BENGALURU CITY
FOR THE OFFENCE P/U/S. 302, 120B, 114, 118, 109, 201, 203,
204 AND 35 OF IPC AND 25(1), 25(1B) AND 27(1) OF INDIAN
ARMS ACT AND SECTION 3(1)(i), 3(2), 3(3) AND 3(4) OF
KARNATAKA CONTROL OF ORGANISED CRIME ACT, 2000, NOW
CHARGE SHEET HAS BEEN FILED IN SPL.C.C.NO.872/2018,
NOW PENDING ON THE FILE OF PRINCIPAL CITY CIVIL AND
SESSION JUDGE, BENGALURU CITY, BENGALURU IMPOSING
ANY CONDITION OR CONDITIONS AS THE HONBLE COURT
DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE
CASE.
IN CRL.P.NO.9417 OF 2023
BETWEEN
SRI. K T NAVEEN KUMAR
S/O THIMMEGOWDA
AGED ABOUT 43 YEARS
PRESENTLY R/AT. GONAGAIAH ROAD
KADALOOR
ATHAGOOR HOBLI
MADDUR TALUKA
MANDYA-571 433.
K. T. NAVEEN KUMAR
KARGAL ROAD
BEEGURU TOWN
KADUR TALUK-577 548
CHIKKAMAGALURU DIST
AS PER SPL CC 872/18
...PETITIONER
(By SRI ARUN SHYAM M., SR.COUNSEL FOR
SRI SUYOG HERELE E,. ADV., &
SRI VASHANTH KUSHALAPPA, ADV.)
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NC: 2024:KHC:27365
CRL.P No. 927 of 2023
C/W CRL.P No. 9417 of 2023
CRL.P No. 9465 of 2023
AND
THE STATE OF KARNATAKA
REP BY RAJARAJESHWARI POLICE STATION
(BY SPECIAL INVESTIGATION TEAM)
O/AT CARLTON HOUSE, BENGALURU
REP BY SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BUILDNG
BENGALURU-560 001.
...RESPONDENT
(By SRI NAIK ASHOK NARAYAN, SPL PP)
THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO DIRECT
THE RESPONDENT POLICE TO ENLARGE THE
PETITIONER/ACCUSED NO.17 ON REGULAR BAIL IN CONNCTION
WITH CRIME.NO.221/2017 REGISTERED WITH THE
RAJARAJESHWARI NAGAR P.S., (ON THE FILE OF PRL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU IN SPL.C.C.NO.872/2018)
FOR THE ALLEGED OFFENCES P/U/S 120B, 302, 114, 118, 109,
201, 203, 204 OF IPC AND SEC.25(1), 25(1b), 27 OF THE ARMS
ACT AND SEC.3(1)(i), 3(2), 3(3) AND 3(4) OF KCOCA ACT.
IN CRL.P.NO.9465 OF 2023
BETWEEN
SRI SURESH H.L
S/O LAXMAN H. C.
AGED ABOUT 40 YEARS
R/A. SRI NILAYA 2ND FLOOR,
D GROUP BADAVANE
K. R. S. AGRAHARA, KUNIGAL
TOWN, TUMKUR DISTRICT
KARNATAKA-572 103.
...PETITIONER
(By SRI MADHUKAR DESHPANDE, ADV.,
SRI UMASHANKAR MEGUNDI, ADV. &
SMT. DIVYA R.B. ADV.)
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NC: 2024:KHC:27365
CRL.P No. 927 of 2023
C/W CRL.P No. 9417 of 2023
CRL.P No. 9465 of 2023
AND
STATE OF KARNATAKA
RAJARAJESHWARI NAGAR P.S.,
(BY SPECIAL INVESTIGATION TEAM)
BY SPL PUBLIC PROSECUTOR,
HIGH COURT
BENGALURU-560 001.
...RESPONDENT
(By Sri NAIK ASHOK NARAYAN, SPL. PP)
THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO
ENLARGE THE PETITIONER/ACCUSED NO.7 ON BAIL IN
CONNECTION WITH CRIME. NO.221/2017 REGISTERED BY THE
RAJARAJESHWARI NAGAR POLICE STATION, ON THE FILE OF
THE PRL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
SPL.C.C.NO.872/2018, FOR THE OFFENCE P/U/S 302, 120B,
114, 118, 109, 201, 203, 204 AND 35 OF IPC AND 25(1),
25(1b), 27(1) OF INDIAN ARMS ACT 1959 AND SECTION
3(1)(i), 3(2), 3(3) AND 3(4) OF KARNATAKA CONTROL OF
ORGANISED CRIME ACT,2000.
THESE PETITIONS ARE COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Accused Nos.5, 7 & 17 in Special.C.C.No.872/2018 pending before the Court of Principal City Civil & Sessions Judge, Bengaluru arising out of Crime No.221/2017 registered by Rajarajeshwari Nagar Police Station, Bengaluru City for the offences punishable under Sections 302, 120B, 118, 203 and 35 IPC, Sections 25(1) and 27(1) of the Indian Arms Act, 1959 and Sections 3(1)(i), 3(2), 3(3) and 3(4) of the Karnataka Control of Organized Crimes Act, 2000 (for short 'COCA Act') -5- NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 are before this Court under Section 439 of Cr.P.C. seeking regular bail.
2. Heard the learned counsel for the parties.
3. Facts leading to filing of these petitions as revealed from the records are as follows:
Based on the complaint filed by CW.1, the Station House Officer of Rajarajeshwari Nagar Police Station, Bengaluru had registered FIR in Crime No.221/2017 against unknown persons for the offences punishable under Section 302 of IPC and Section 25 of the Arms Act.
4. Complainant/Kavitha Lankesh - CW.1 had averred in the complaint that deceased Gouri Lankesh, who was her sister, was a journalist and a progressive thinker and was residing alone in a house at Rajarajeshwari Nagar. She was often visiting the house of the complainant to meet her mother Indira Lankesh. A week prior to the date of the complaint, deceased Gouri Lankesh had come to the house of the complainant and informed her that somebody was moving around her house in a suspicious manner. On 05.09.2017 at about 2.00 p.m., -6- NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 complainant had gone to the office of the deceased at Gandhi Bazaar and had met her. At about 8.26 p.m. on 05.09.2017, when the complainant and her mother Indira Lankesh were at home, somebody telephoned her and informed that something had happened to Gouri Lankesh in her house. Immediately, complainant went near the house of Gouri Lankesh and saw that her car bearing registration No.KA-5/MR-3782 was parked in front of the gate, which was partially open. The complainant saw that her sister was lying in a pool of blood and besides her body cartridge pieces were found. She suspected that somebody had shot dead her sister and escaped. Accordingly, she approached the police at about 10.00 p.m. on 05.09.2017 and lodged a complaint, which had resulted in registering FIR in Crime No.221/2017 against unknown persons.
5. During the course of investigation, accused No.5 was arrested on 21.05.2018, accused No.7 was arrested on 25.07.2018 and accused No.17 was arrested on 02.3.2018. The investigation in the case is completed and charge sheet has been filed. In the charge sheet, the petitioners herein are arrayed as accused Nos.5, 7 and 17 respectively. The bail -7- NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 application filed by them before the Trial Court in Special C.C.No.872/2018 was rejected. Therefore, they are before this Court.
6. Learned counsel for the accused No.5 submits that accused No.5 was arrested on the basis of the voluntary statement of accused No.1. The allegation against accused No.5 is about financing the other accused persons. He had no criminal antecedents prior to his arrest in the present case. After his arrest, he has been falsely implicated in other criminal cases. There is no seizure from him in the present case. He was not part of any conspiracy nor was he present in the spot of crime. He is in custody for the last more than six years. Accordingly, he prays to allow the petition.
7. Learned counsel for the accused No.7 submits that the allegation against accused No.7 is about tracing the address of deceased Gouri Lankesh and providing the same to accused No.15. It is further alleged that accused No.7 had identified places to hide the arms and he had given shelter to accused Nos.1 and 15 at Sigehalli and after the crime was committed, he had harboured accused Nos.2, 3 and 6. He submits that -8- NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 accused No.7 has no criminal antecedents and he was working as a teacher in a private school. He submits that accused No.11 has been granted regular bail by this Court on the ground of his long incarceration and prays that on the ground of parity even the petitioner/accused No.7 may be enlarged on bail.
8. Learned senior counsel appearing for the petitioner/accused No.17 submits that the allegation against accused No.17 is that he had conspired with accused No.13 and also had supplied mobile SIM card to other accused persons, which stood in the name of CW.392 - Naveen Kumar. He submits that Naveen Kumar, who is examined as PW.79 has turned hostile to the case of the prosecution. He also submits that accused No.17 was initially arrested in crime No.45/2018 wherein the allegation is that he was found selling live bullets near Mejestic bus-stand. Subsequently, he has been falsely implicated in the present case and produced under a body warrant before the Trial Court in this case. He had no criminal antecedents before he was arrested in Crime No.45/2018. The earlier bail application filed by accused No.17 in Criminal Petition No.5507/2019 was dismissed by this Court on -9- NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 10.01.2020. After the first bail application of accused No.11 - Mohan Nayak in Criminal Petition No.8325/2018 was dismissed on 11.02.2019, he has been granted regular bail by this Court in Criminal Petition No.7963/2023 disposed of on 07.12.2023 on the ground of his long incarceration. He submits that out of 527 charge sheet witnesses, the prosecution has only examined 130 charge sheet witnesses till date as PW.1 to PW.130 though the trial has commenced in the month of July, 2022 itself. He has placed reliance in the judgment of the Hon'ble Supreme Court in the case of PRAVEEN RATHORE VS. STATE OF RAJASTHAN AND ANOTHER - 2023 SCC Online SC 1268.
9. Per contra, learned Special Public Prosecutor, who has filed his statement of objections, has strongly opposed the prayer made in the petitions. He submits that the order passed by this Court in Criminal Petition No.7963/2023 disposed of 07.12.2023 granting regular bail to accused No.11 - Mohan Nayak has been challenged before the Hon'ble Supreme Court and the same is pending consideration. Therefore, no reliance can be placed and no parity can be extended to the petitioners on the basis of the order passed by this Court in Criminal Petition No.7963/2023. He submits that there is a proposal to
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 constitute a Special Court for expediting the trial in the present case. The discharge application filed by the petitioners before the Trial Court has been rejected. The petitioners are involved in a heinous offence and this Court is required to consider the gravity of the offence and long period of incarceration cannot be a ground to grant bail to the petitioners/accused, who are involved in committing the murder of a social activist. He submits that in the event petitioners are enlarged on bail, they are likely to tamper with the prosecution witnesses. He submits that accused Nos.5 and 17 are involved in another criminal case for conspiring to murder one Prof. Bhagavan in Mysuru. In support of his arguments, he has relied upon the judgment of the Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA VS. RITESH - 2001 (4) SCC 224 and also in the case of KALYAN CHANDRA SARKAR VS. RAJESH RANJAN @ PAPPU YADAV - 2004 (7) SCC 528.
10. In reply, learned counsel for the petitioners submit that in the case that was registered for conspiring to murder Prof. Bhagavan, accused No.5 and 17 have been granted bail and the charge sheet filed in the said case is only for the offences triable by the Court of Magistrate. They also submit that
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 inordinate delay in trial has resulted in violation of right guaranteed to the petitioners under Article 21 of the Constitution of India.
11. It is not in dispute that the petitioners are not the actual assailants of deceased Gouri Lankesh and it is also not in dispute that they were not present in the spot of crime on the date of the incident. The allegations against the petitioners are about conspiring with other accused persons, tracing the address of deceased Gouri Lankesh, providing SIM card to other accused persons, making arrangement to hide the arms and also providing shelter and vehicle to some of the accused persons. There is also an allegation as against accused No.7 about harbouring accused No.2, 3 and 6 after the crime was committed. Similar allegations are found in the charge sheet even against accused No.11 - Mohan Nayak. Accused No.11 allegedly conspired with other accused persons to commit the murder of deceased Gouri Lankesh and in furtherance of such conspiracy, he had taken a house for rent at Ramanagara in an isolated place and had given shelter in the said house to accused Nos.2 and 3, who are the actual assailants in the present case.
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12. The bail application filed by accused No.11 before this Court in Criminal Petition No.8325/2018 was dismissed by order dated 11.02.2019 with a direction to the Trial Court to expedite trial. Though the said direction was issued on 11.02.2019, the charges were framed only in the month of July, 2022. The prosecution has cited 527 charge sheet witnesses and out of the same, as on the date when accused No.11 - Mohan Nayak had approached this Court in his successive bail application in Criminal Petition No.7963/2023, the prosecution had examined only 90 charge sheet witnesses as PW.1 to PW.90. It is in this background, accused No.11 - Mohan Nayak's bail application was allowed by this Court considering his long period of incarceration.
13. Accused Nos.5 and 17 are in custody for the last more than six years and accused No.7 is in custody for nearly six years. As on this date, out of 527 charge sheet witnesses, the prosecution has examined only 130 charge sheet witnesses. For the last nearly three years, out of 527 charge sheet witnesses, only 130 charge sheet witnesses have been examined. Even if it is presumed that all the remaining charge
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 sheet witnesses may not be examined by the prosecution, still it is likely to take a considerable period for completing examination of the material charge sheet witnesses by the prosecution before the Trial Court. Though the Special Public Prosecutor has made a submission that Special Court is being constituted to try the present case, till date no such notification is issued by the State.
14. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. For the purpose of testing of procedural fairness, the Court will not just examine whether procedure provided is just, fair and reasonable but it shall also examine whether the said procedure has been operated in a just, fair and reasonable manner.
15. Article 21 of the Constitution of India is the most vibrant and progressive provision in our constitution and plays a pivotal role in the lifeline of a democratic society. Whenever the State deprives 'life' and 'liberty' to a person, the right under Article 21 always comes to his protection. This right is available to every person including a foreigner. The right to life is the soul
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 of our Constitution and all other rights can only operate around this and add quality to the life in question. Fair and speedy trial is a right which flows from Article 21 and whenever the Courts find that this right is denied by 'State' as defined under Article 12 of our Constitution, the Courts need to act for its protection. This right is not only available to free individuals but also to the accused who are incarcerated.
16. The prosecution has altogether cited 527 charge sheet witnesses in the present case and out of them, only 130 charge sheet witnesses have been examined till date as PW-1 to PW-
130. The Hon'ble Supreme Court in the case of ANGELA HARISH SONTAKKE VS STATE OF MAHARASHTRA - (2021)3 SCC 723, wherein the accused persons were charged for the offences under the provisions of Unlawful Activities (Prevention) Act, 1967, having considered the seriousness of the charges and the period of custody suffered by the accused, had granted bail to the accused notwithstanding the rigor under Section 43-D(5) of the said Act considering the fact that the accused had suffered five years incarceration.
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023
17. In the case of SAGAR TATYARAM GORKHE VS STATE OF MAHARASHTRA - (2021)3 SCC 725, considering the fact that the accused persons were in jail for a period of four years, and there were 147 witnesses who were still to be examined, the Hon'ble Supreme Court had enlarged the accused on bail.
18. In the case of UNION OF INDIA VS K.A.NAJEEB - (2021)3 SCC 713, considering the fact that the accused were in jail for a period of more than five years and there were 276 witnesses left to be examined, the Hon'ble Supreme Court had refused to interfere with the order granting bail to the accused by the High Court on the ground of delay in trial and long period of incarceration suffered by the accused. In paragraphs 15, 17 & 18 of the said judgment, it has been observed as under:
"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 :
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 1995 SCC (Cri) 39] , it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected."
19. In the case of MOHD. MUSLIM ALIAS HUSSAIN VS STATE (NCT OF DELHI) - 2023 SCC OnLine SC 352, the
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 Hon'ble Supreme Court while considering the rigor under Section 37 of the NDPS Act, for granting bail to the accused, has observed that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, given the imperative of Section 436A which is applicable to the offences under the NDPS Act too. In the said judgment, at paragraphs 22 to 24, it has been observed as under:
"22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State as "a radical transformation"
whereby the prisoner:
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 "loses his identity. He is known by a number. He loses personal possessions.
He has no personal relationships.
Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes."
24. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal" (also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata : immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."
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20. In Praveen Rathore's case supra, wherein, the accused persons were tried for the offences punishable under Sections 302 and 120B of IPC, taking into consideration that accused were in custody for a period of more than four and half years and the prosecution had only examined 53 charge sheet witnesses in paragraph No.7, the Hon'ble Supreme Court has observed as follows:
"7. Taking into consideration the period already spent by the petitioner in custody coupled with the fact that conclusion of trial will take some reasonable time however, without expressing any views on the merits of the case, we inclined to release him on bail."
21. In the case of INDRANI PRATIM MUKERJEA VS. CENTRAL BUREAU OF INVESTIGATION - 2022 SCC OnLine SC 695, the Hon'ble Supreme Court taking into consideration that the accused, who was being tried for the offence punishable under Section 302 of IPC was in custody for a period of six and half years and the prosecution was yet to examine many more charge sheet witnesses, granted bail to the accused observing as follows:
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 "Admittedly, the petitioner has been in custody for 6½ years. We do not intend to comment on the merits of the case which might be detrimental to the interest of either the prosecution or the defence. Taking into account the fact that the petitioner has been in custody for 6½ years and even if 50% of the remaining witnesses are given up by the prosecution, the trial will not complete soon, we are of the considered view that the petitioner is entitled to be released on bail."
22. In the said case a contention was urged on behalf of the prosecution that having regard to the gravity of the offence, the petitioner/accused is not entitled to be enlarged on bail, however, having regard to the long period of incarceration in custody by the petitioner therein, the Hon'ble Supreme Court had released the petitioner on bail.
23. In K.A.Najeeb's case supra, the Hon'ble Supreme Court in paragraph No.11 has observed as follows:
11. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigor of Section 43D(5) of UAPA are alien to him.
The High Court instead appears to have exercised its power to grant bail owing to the long period of
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43D (5) of UAPA."
24. In the said case after referring to the statutory restrictions provided under Section 43-D(5) of the Unlawful Activities (Prevention) Act. 1967, the Hon'ble Supreme Court has held that the statutory restrictions like Section 43-D(5) of the Act does not oust the ability of the constitutional courts to grant bail on the ground of violation of fundamental rights. The same view is reiterated in the case of MOHD. MUSLIM ALIAS HUSSAIN's case supra, after rigor under Section 37(1)(B) of the NDPS Act was considered by the Hon'ble Supreme Court.
25. The Hon'ble Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation - (2022) 10 SCC 51, has observed as follows:
"Prolonged incarceration and inordinate delay engaged the attention of the Court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 of NDPS Act. The Court expressed the opinion
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:
We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigor imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigor, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.
26. The Hon'ble Supreme Court in the case of Ankur Chaudhary vs. State of Madhya Pradesh - Special Leave Petition No.4648/2024 disposed of on 28.05.2024, has held that failure to conclude the trial within a reasonable time
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.
27. The Hon'ble Supreme Court in the case of Javed Gulam Nabi Shaikh vs. State of Maharashtra and Another- 2024 SCC OnLine SC 1693, in paragraph No.19, has observed as follows:
"19. If the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."
28. In Ritesh's case supra, the Hon'ble Supreme Court had set aside the order of granting bail to the accused having regard to the facts and circumstances of the said case and
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 therefore, the said judgment cannot be made applicable to the case on hand.
29. In Kalyan Chandra Sarkar's case supra, the bail granted to an accused, who was in jail for a period of three and half years was cancelled by the Hon'ble Supreme Court taking into consideration the gravity of the offences and also the allegation of tampering the witnesses by the accused, when he was on bail. The same is not the fact situation in the present case and therefore, even the said judgment cannot be made applicable to the case on hand.
30. Though it is submitted by the learned Special Public Prosecutor that the order passed by this Court in Criminal Petition No.7963/2023 disposed of on 07.12.2023 in respect of accused No.11 - Mohan Nayak has been challenged by the State before the Hon'ble Supreme Court, it is not in dispute that the Hon'ble Supreme Court has not passed any interim order in the said proceedings. The allegations found against accused No.11 compared to the allegations found against the petitioners herein are more serious. Accused No.11 was arrested on 18.07.2018 in the present case and taking into
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 consideration that he was in custody for more than five year, this Court had enlarged him on bail in Criminal Petition No.7963/2023. So far as petitioners are concerned, accused Nos.5 and 17 are in custody for more than six years and accused No.7 is in custody for nearly six years. The prosecution is required to examine nearly 400 charge sheet witnesses out of 527 charge sheet witnesses and even if it presumed that out of the same, only 50% of the charge sheet witnesses would be examined by the prosecution, considering the fact that for the last more than two years, the prosecution has examined only 130 charge sheet witnesses, it may take considerable period of time to complete the examination of the remaining charge sheet witnesses by the prosecution. In view of the observations made by the Hon'ble Supreme Court in K.A.Najeeb's case supra and in Mohd. Muslim's case supra, considering the long period of incarceration of petitioners, the rigor under Section 22(4) of COCA Act shall not fetter the powers of this Court to enlarge the petitioners on bail. There is undue delay in trial and the material on record would go to show that the trial may not be completed in the near soon. This Court while disposing of Criminal Petition No.7963/2023 after
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023 perusing the order sheet in Special Case No.872/2018 has observed that the delay in trial in the present case cannot be attributed to the accused. Under the circumstances, I am of the opinion that without expressing any opinion on the merits of the case, the prayer made by the petitioners in these three petitions requires to be granted. Accordingly, the following:
ORDER
(i) The criminal petitions are allowed.
(ii) The petitioners are directed to be enlarged on bail in Speical C.C.No.872/2018 pending before the Court of Principal City Civil and Sessions Judge, Bengaluru arising out of Crime No.221/2017 registered by Rajarajeshwari Nagar Police Station, Bengaluru City for the offences punishable under Sections 302, 120B,, 118, 203 and 35 IPC, Sections 25(1) and 27(1) of the Indian Arms Act, 1959 and Sections 3(1)(i), 3(2), 3(3) and 3(4) of the Karnataka Control of Organized Crimes Act, 2000, subject to the following conditions:
a) Petitioners shall execute personal bond for a sum of Rs.2,00,000/- each with two sureties for the likesum, to the satisfaction of the jurisdictional Court;
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NC: 2024:KHC:27365 CRL.P No. 927 of 2023 C/W CRL.P No. 9417 of 2023 CRL.P No. 9465 of 2023
b) The petitioners shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts their appearance for valid reasons;
c) The petitioners shall not directly or indirectly threaten or tamper with the prosecution witnesses;
d) The petitioners shall not involve in similar offences in future;
e) The petitioners shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against them is disposed off.
Sd/-
JUDGE SRT/DN