Karnataka High Court
State Of Karnataka vs Sri. Shivakumaraiah @ Guruji on 28 February, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.977 OF 2019
BETWEEN:
STATE OF KARNATAKA
BY MALLESHWARAM P.S.
...PETITIONER
(BY SRI: ASHOK N NAIK, ADVOCATE)
AND:
SRI. SHIVAKUMARAIAH @ GURUJI
S/O LATE CHANNAPPA
ADDRESS: KAGGERE VILLAGE
ERKASANDRA POST, CHELLUR HOBLI
GUBBI TALUK, TUMKUR DIST-572216
...RESPONDENT
(BY SRI: SANDESH J. CHOUTA, SR. ADVOCATE A/W
SRI: SUNIL KUMAR, ADVOCATE)
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THIS CRL.P IS FILED UNDER SECTION 439(2) CR.P.C.
PRAYING TO
A. SET ASIDE/CANCEL THE BAIL GRANT ORDER PASSED
BY THE HON'BLE KARNATAKA HIGH COURT IN FAVOUR OF
RESPONDENT-A2 IN CRL.P.NO.7621/2017 PASSED IN
17.10.2017 ANNEXURE-A.
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B. DIRECT THE PRINICPAL CITY CIVIL AND SESSIONS
COURT AND SEPCIAL COURT (KCOCA) IN SPL.C.C.NO.
417/2016 TO ISSUE BODY WARRANT TO RESPONDENT
ACCUSED IN UTP NO.11882/2018 PARAPPANA AGRAHARA
CENTRAL JAIL, BANGALORE, SO AS TO TREAT RESPONDENT
AS IN JUDICIAL CUSTODY.
THIS CRL.P COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
This application is filed by the State under section 439(2) Cr.P.C., seeking to cancel the bail granted to respondent (accused in Crime No.37/2016) for violation of the bail condition.
2. Respondent herein was admitted to bail by orders of this Court in Criminal Petition No.7621/2017 dated 07.10.2017 in Crime No.37/2016 pending on the file of the Principal City Civil & Sessions Judge and Special Court for the punishable offences under sections 411, 454, 457, 380, 381, 461, 166, 120-B, 201 r/w. section 109 of IPC, sections 115, 23 of Karnataka Education Act, 1983, sections 13(1)(d), 13(2) of Prevention of Corruption Act and sections 3(1)(ii), 3(2), 3 3(4), 3(5) of the Karnataka Control of Organized Crime Act, 2000. One of the conditions of bail was that the respondent herein "shall not indulge in any illegal activities".
3(i) The contention of the petitioner/State is that, after being enlarged on bail, a case in Crime No.4343/2018 was registered at Cyber Crime Police Station, Bengaluru City, on 23.11.2018 under sections 120B, 114, 379, 465, 468, 471, 474, 420 r/w 34 IPC and sections 66(c), 66(d) of Information Technology Act-2000 against the respondent and others and charge sheet is filed therein.
3(ii) Further, respondent got involved in another question paper leakage of BMTC Asst. Traffic Controller, Conductor, Security Guard and Junior Assistant-cum-Data Entry Operator Recruitment Examination for which a case in Crime No.04/2019 under sections 120B, 114, 420, 379, 465, 468, 471, 474 read with 34 of IPC has been registered in Wilson Garden Police Station, Bengaluru City on 07.01.2019. Petitioner has produced copy of the FIR at Annexure-'J'. 4
4. Sri.Ashok N.Naik, learned Spl.PP appearing for petitioner has placed reliance on the decision of the Hon'ble Supreme Court in the case of THE STATE OF BIHAR & Another vs. AMIT KUMAR @ BHACHA RAI in 2017(13) SCC 751 and another decision of this Court in Criminal Petition No.3467/2019 disposed of on 09.09.2019 and reiterated that the respondent/accused having violated the condition imposed by this Court, the bail granted to the respondent is liable to be cancelled.
5(i) Refuting the submissions, respondent has filed a detailed objection statement inter alia contending that even on the earlier occasion the State had moved for cancellation of bail of accused Nos.6, 4, 2 (respondent herein) and accused No.10 before this Court in Criminal Petition Nos.3277/2018 c/w. 3278/2018, 2484/2018, Criminal Petition No.5386/2017 (arising out of Spl.C.C.No.417/2016) and the same were dismissed vide order dated 04.07.2018 and 20.06.2018. Further, cancellation of bail was also sought for before the Hon'ble Supreme Court in SLP.(Crl)Nos.8155- 8158/2016, SLP (Crl.)No.2209/2017 by accused Nos.11, 12, 5 13, 14, SLP (Crl.)No.2628/2017 and the same were dismissed on 09.03.2018 and 19.03.2018. The application for cancellation of bail of accused No.3 filed by the State before the Sessions Court has also been dismissed on 03.05.2019. Further the Sessions Court by order dated 20.11.2017 discharged accused Nos.13 and 14 from the case.
5(ii) Sri.Sandesh J.Chouta, learned Senior Counsel appearing for respondent would submit that the principles for rejection of bail when the bail is applied for is one thing and cancellation of bail already granted is quite another. Very cogent and overwhelming circumstances are necessary for cancellation of bail and the trend today is towards granting bail because it is now well settled by a catena of decisions that the power to grant bail is not to be exercised as if the punishment before trial is being imposed.
5(iii) Referring to the principles laid down by the Hon'ble Supreme Court in the case of STATE OF BIHAR vs. RAJBALLAV PRASAD in (2017)2 SCC 178, learned Senior Counsel emphasized that mere submission of the FIR does not 6 lead to the conclusion that the respondent has indulged in similar activities. The charges leveled against the respondent are yet to be established. While considering the prayer for cancellation of bail, the primary consideration which should weigh with the Court is, whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. It is not the case of the petitioner that the respondent has resorted to tampering with the evidence or interfere with due course of justice. There are no such allegations. There is no threat to fair trial on account of the bail granted to the respondent. Even the prayer made by the State for cancellation of the bail in respect of co-accused namely accused No.10 has been rejected by this court in Criminal Petition No.5386/2017 disposed of on 20.06.2018. Thus he prayed for dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have gone through the material on record.
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7. The ground on which the State has sought for cancellation of bail is that, subsequent to release of the respondent on bail charge sheet is filed against the respondent in Cr.No.4343/2018 and FIR is registered against him in Crime No.4/2019 (Annexure-'J'). Copy of the FIR produced by the petitioner/State indicate that FIR was registered against three accused persons in Crime No.4/2019 based on the complaint lodged by Sri.Nagendra.N., Staff Superintendent (Recruitment), BMTC, Bengaluru under sections 120B, 420, 379, 468, 465, 471, 114, 474 read with 34 of IPC. The allegations in the complaint are that, one Somappa Yamanappa Melinamani who was working as Conductor in Jigani Depot No.27, BMTC, was arrested on 01.01.1019 in connection with case No.4343/2018 of Cyber Crime Police Station. He was produced before the ACMM Court on 02.01.2019 and taken into police custody, on the allegation that said Somappa Yamanappa Melinamani who secured I rank in BMTC Asst. Traffic Controller, Conductor, Security Guard and Junior Assistant-cum-Data Entry Operator 8 Recruitment Examination held on 10.06.2018, indulged in cheating and malpractice. It is alleged in the complaint that Sri.Somappa Yamanappa Melinamani had contacted one Basappa Bajanthri Ningod and he in turn contacted C.T.Basavaraju @ Babanna and Shivakumaraiah @ Shivakumar @ Guruji (respondent herein) and offered them Rs.2.00 lakhs. On the previous day of examination i.e., on 9.06.2018, he was taken by Basappa Bajanthri Ningod, Somappa Melinamani and Somappa Kumbara @ Kambara to the farm house of one C.T.Basavaraju. In that farm house, about 30-35 people had assembled. The respondent herein Shivakumaraiah @ Shivakumar @ Guruji wrote the questions of the leaked question paper in a white sheet and gave copies of the same to the people who had assembled in that farm house and helped them in answering the questions. On the next day, Somappa Yamanappa Melinamani was sent to Jayanagar Examination Centre in a car belonging to C.T.Basavaraju. Somappa Yamanappa Melinamani secured first rank in the examination and was selected as Conductor. 9
8. This document no doubt points out that a criminal case has been registered against the respondent subsequent to the release of the respondent by orders of this Court in Criminal Petition No.7621/2017 dated 07.10.2017, but merely on the basis of the registration of FIR, it cannot be said that the respondent has indulged in illegal activities.
9. Mere lodging of first information report does not amount to commission of an offence. FIR is nothing but a report of the accusations or allegations levelled against the accused paving way for investigation. An accused can be said to have committed an offence only when the court after considering the material before it and after hearing the parties, forms an opinion to that effect at the time of framing of charges. That stage has not yet reached. There are no allegations that on account of alleged registration of the case, the trial of the respondent or other accused has been prejudiced or that fair trial is not possible on account of enlargement of respondent. In the absence of any such material, merely on the ground that a FIR has been registered 10 against the respondent and charge sheet is filed against him in an offence which is alleged to have been committed earlier to his release on bail cannot be a ground for cancellation of bail granted to the respondent. Hence, I am not inclined to allow the Petition.
Petition is dismissed.
Sd/-
JUDGE Bss.