Karnataka High Court
State By Alur Police vs Kumara on 23 February, 2016
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
R
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRIMINAL PETITION NO.3973/2015
BETWEEN:
STATE BY ALUR POLICE
573 213
... PETITIONER
(By Sri: K.NAGESHWARAPA, HCGP)
AND
KUMARA
S/O LORRY VENKATAPPA
AGED ABOUT 51 YEARS
R/O KUMBARAHALLI KOPPALU
VILLAGE, ALUR TALUK
HASSAN DISTRICT 573 213
... RESPONDENT
(By Sri: B LETHIF, ADV.)
CRL.P FILED U/S.439(2) CR.P.C BY THE STATE FOR
THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO ALLOW THE PETITION AND CANCEL
THE ORDER OF BAIL DATED 16.12.2014 PASSED IN
CRL.MISC.NO.1451 OF 2014 ON THE FILE OF THE
LEARNED PRL.S.J. AT HASSAN IN CR.NO.273/2014 OF
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ALUR P.S., HASSAN WHICH REGISTERED FOR THE
OFFENCE P/U/S 506,376 OF IPC IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 10.02.2016, AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
ORDER ON THE BAIL APPLICATION FILED
UNDER SECTION 439(2), Cr.P.C.
The present petition is filed by the State
requesting the court to cancel the bail granted to the
respondent-accused by the III Additional Sessions
Judge, Hassan, in Crl.Misc.145/03 on 16.12.2014 in a
criminal case in Crime No.273/14 filed by Alur police
station, Hassan District, for the offences punishable
under Sections 506 and 376, I.P.C.
2. The allegation made against the respondent-
accused is that on 12.8.2014 at 5.30 p.m., accused
forcibly dragged the complainant lady to the land in
Survey No.131/1 of Halebelur village in which maize
crop was standing, and raped her. It is further alleged
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that he threatened to kill her if she were to inform about
the same to anybody. It is stated that the victim lady
came to Bengaluru and lodged first information 3 days
after the alleged incident and the case was registered
and transferred to Alur police station. After concluding
investigation, charge sheet is filed for the above said
offences.
3. Four months after his arrest, the accused chose
to file an application under Section 439, Cr.P.C. seeking
regular bail before the sessions court, Hassan, and he is
enlarged on bail. The reasons assigned by the learned
sessions judge are found at paragraph 10 at pages 4
and 5 of the order.
4. What is essentially argued before this court by the
learned HCGP is that the sessions judge has exercised
the discretion vested in him under Section 439, Cr.P.C.
wrongly and that he has not looked into the seriousness
of the offence alleged against the accused. It is further
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argued that the accused was aged 50 years and had
committed rape of a girl hardly 20 years, that too,
taking advantage of the lady being alone in the field,
and threatening her with dire consequences. According
to the learned HCGP, the allegation made against the
accused is of serious nature and the punishment
contemplated therefor is RI for a period of 10 years
along with fine, and therefore, regular bail granted by
the sessions judge is liable to be cancelled.
5. Per contra, learned counsel for the accused has
submitted that the learned judge, while granting bail,
has taken into consideration the delay in filing the first
information, the place of lodging the complaint,
conclusion of investigation and non-submission of the
report by Forensic Science Laboratory (FSL). It is
further argued that as many as three conditions have
been imposed on the accused and he has been promptly
complying with all the conditions and has not violated
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them in any manner. He has further argued that no
supervening circumstances are forthcoming to cancel
bail. He has requested this court to dismiss the
application filed under Section 439(2), Cr.P.C.
6. After going through the records and the
arguments of the learned HCGP and learned counsel for
the accused, the following point arises for the
consideration of this court:
Whether valid and justifiable grounds
are made out to cancel bail granted to
the accused on 16.1.2014 at this
stage?
REASONS
7. As could be seen from the impugned order
dat4ed 16.12.2014, the allegation is that the accused
who is aged 50 years forcibly took the victim girl aged
20 years to the land in which maize crop was standing
and raped her and even threatened her with dire
consequences to her life if she were to inform the same
to anybody. Though the incident in question is stated
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to have taken place within the purview of Alur taluk, the
victim came to Bengaluru since she is working in the
city and lodged the first information after three days of
the incident, on the basis of which the jurisdictional
police registered a case and transferred it to Alur police
station.
8. Of course investigation had been completed by
the time the application seeking bail was filed by the
accused before this court. The reasons assigned by the
learned sessions judge to grant bail are found in
paragraph 10 at page 4 of the order and it is extracted
below:
'10. I have bestowed my anxious
consideration to the arguments put forth by
the learned counsel for the petitioner and the
learned Public Prosecutor. I have carefully
perused the records. Record reveals that the
respondent police have registered the crime
against the petitioner for the offences
punishable under Sections 376 and 506 of
the Indian Penal Code. The investigation is
completed and charge sheet has been filed.
The offences alleged against the petitioner are
heinous in nature, but it is the earlier stage
to come to the conclusion that the petitioner
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has committed the alleged offences. Whether
the petitioner has committed the alleged
offences or not, it needs elaborate trial. The
petitioner is in custody since four months
and at this stage, if the petitioner were
detained in custody, no purpose would be
served. Instead if the bail is granted to the
petitioner with stringent conditions,
apprehension of the prosecution can be met.
Under the circumstances, I answer the above
point in the affirmative.'
9. It is true that the medical officer was not able to
give any opinion because he had not yet received the
report from FSL. Admittedly the undergarment of the
victim girl had been sent to FSL to have an opinion and
it had not yet been received by the medical officer.
10. Normally delay in lodging a complaint relating to
a case of rape should not be blown out of proportion.
The relevant observation made by the Hon'ble apex
court in the case of STATE OF PUNJAB .v. GURMIT
SINGH & OTHERS (1996(2) SCC 384) is extracted
below:
'The courts cannot overlook the fact that
in sexual offences, delay in the lodging of the
FIR can be due to variety of reasons,
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particularly the reluctance of the prosecutrix
or her family members to go to the police and
complain about the incident which concerns
the reputation of the prosecutrix and the
honour of her family. It is only after giving it a
cool thought that a complaint of sexual
offence is generally lodged.'
11. As rightly pointed out by the learned HCGP, rape
is a heinous offence and the maximum punishment
contemplated can extend to 10 years RI along with fine.
While considering the bail application relating to serious
offences like murder, rape, dacoity, factors like the
gravity of the offence, nature of allegations made and
the maximum punishment contemplated therefor and
the possibility of the accused threatening or interfering
with the prosecution witnesses will have to be taken
into consideration. Learned HCGP is right in pointing
out that offences against women, children, members of
Scheduled Caste/Scheduled Tribe and economic
offences will have a great impact on the society. There
is a lot of force in the said submission.
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12. The Hon'ble apex court in the case of DOLAT
RAM AND OTHERS .V. STATE OF HARYANA ([1995] 1
SCC 349) has held that 'rejection of bail in a non-
bailable case at the initial stage and cancellation of bail
already granted, have to be considered and dealt with on
different basis.' It is further reiterated that very cogent
and overwhelming circumstances are necessary to
cancel the bail already granted. According to the
Hon'ble apex court, broad grounds for cancellation of
bail are:
i) interference or attempt to
interfere with the due course of
administration of justice,
ii) evasion, or attempt to evade the
due course of justice or
iii) abuse of the concesion granted
to the accused in any manner.
Yet another ground could be the probability of the
accused absconding. Therefore caution given by the
Hon'ble apex court in the above case is that bail once
granted should not be cancelled in a mechanical
manner without examining whether any supervening
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circumstances have rendered it no longer conducive to a
fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during the trial.
13. What are the factors to be kept in mind while
granting bail in a case relating to the commission of a
heinous offence have been considered by the Hon'ble
apex court in the case of PRASANTA KUMAR SARKAR
.v. ASHIS CHATERJEE AND ANOTHER ([2010] 14
SCC 496). In paragraph 9 of the said judgment at page
499, the Hon'ble apex court has broadly indicated the
factors to be borne in mind while considering an
application for bail relating to heinous offences. It is
extracted below:
i) whether there is any prima facie
or reasonable ground to believe that the
accused had committed the offence;
ii) nature and gravity of the
accusation;
iii) severity of the punishment in the
event of conviction;
iv) danger of the accused absconding or
fleeing, if released on bail;
v) character, behavior, means, position
and standing of the accused;
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vi) likelihood of the offence being
repeated;
vii) reasonable apprehension of the
witnesses being influenced; and
viii) danger, of course, of justice being
thwarted by grant of bail.
14. In another case reported in [2009] 14 SCC 286
between MASROOR .v. STATE OF U.P. AND
ANOTHER, the Hon'ble apex court has cautioned the
court dealing with bail applications not to examine the
evidence placed on record elaborately and not to give
detailed reasons touching the merits of the case which
may prejudice the accused; but there is a need to
indicate in such order the reasons for prima facie
concluding why bail is granted when he is charged of
having committed a serious offence. The relevant
observation of the Hon'ble apex court is reproduced
below:
12. Normally this court does not interfere
with the order of the High Court relating
to grant or rejection of bail but in the
instant case, having carefully gone
through the impugned order, we are
constrained to observe that the High Court
has completely ignored the basic
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principles which are to be kept in view
while dealing with an application filed
under Section 439 of the Code for grant of
bail to the second respondent, warranting
interference by this court.'
15. In the present case, the reasons assigned by the
learned sessions judge to grant bail are forthcoming in
paragraph 10 which is extracted above. After going
through the reasoning in paragraph 10 of the impugned
order, this court is of the opinion that the learned judge
should not have made such observation stating as to
whether the accused has committed the alleged offence
needs to be found out only through an elaborate trial
and that no purpose would be served if he is detained in
judicial custody after filing of charge sheet.
Suffice to state that in the present case, no sufficient or
cogent reasons are assigned in paragraph 10 of the
impugned order to grant bail in a heinous offence of this
nature. But the accused has been enjoying the benefit
of bail since 16.12.2014 and one year and two months
has already elapsed since the date of grant of bail. As
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rightly pointed out by the Hon'ble apex court in the case
of DOLAT RAM (supra), no supervening circumstances
are made out to render it no longer conducive to a fair
trial to allow the accused to retain his freedom by
enjoying the concession of bail during the trial.
16. It is not the case of the prosecution that the
accused has violated any of the bail conditions. Nothing
is placed on record to indicate that he has held out
threats to prosecution witnesses or is interfering in any
manner and there is a likelihood of trial being
influenced in one manner or the other. The three
conditions imposed by the learned judge while granting
bail are extracted below:
1) Petitioner shall not tamper with the
prosecution witnesses;
2) Petitioner shall appear before the court
on all the dates of hearing without fail;
3) Petitioner shall not leave the
jurisdiction of the court without prior
permission.
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Thus in the light of the gravity of the offence, an offence
committed by a man aged 50 years on a girl aged 20
years and the discretion being exercised in the sessions
judge under Section 439, Cr.P.C. in favour of the
accused, more stringent conditions should have been
imposed so that the trial would go on without hindrance
in any manner, and the witnesses would be able to
depose before court without any threat or apprehension.
17. The decision of the Hon'ble apex court in the
case of DHOLAT RAM (supra) has been followed by the
Hon'ble apex court in the case of SUBHENDU MISHRA
.v. SUBRAT KUMAR MISHRA AND ANOTHER (AIR
1999 SC 3026) by a Bench consisting of three Judges
and another Bench of three Judges in the case of
SAMARENDRA NATH BHATTACHARJEE .v. STATE
OF WEST BENGAL AND ANOTHER (AIR 2004 SC
4207).
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18. As per the facts in the case of DHOLAT RAM, the
additional sessions judge of Rohtak had granted
anticipatory bail to the husband and brothers of the
deceased (Sunitha) and directed that they be released
by furnishing bond of Rs.1,000/- each with one surety
for the like sum to the satisfaction of the arresting IO.
Of course bail had not been granted to the husband of
the deceased. The offence so alleged was in respect of
dowry death of Sunitha. The High Court of Punjab and
Haryana, on an application filed by the prosecution,
cancelled bail essentially on the ground that no prima
facie case had been made out to justify grant of
anticipatory bail. While granting bail, the learned
sessions judge of Rohtak had observed as follows:
'It appears that possibly these accused
have been roped in falsely.'
This observation, it appears, was the main reason for
the High Court to cancel bail. The accused had moved
the Hon'ble apex court about the cancellation of bail
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and therefore the apex court held that very cogent and
overwhelming circumstances are necessary for directing
the cancellation of bail already granted.
19. As rightly pointed out by the learned HCGP, the
sessions judge should have taken into consideration the
gravity of the offence of rape alleged against a man aged
50 years and the punishment contemplated therefor. It
is true that the reasons assigned by the learned
sessions judge are not so convincing.
20. But still the respondent-accused has been
enjoying bail from December 2014 and the application
for cancellation of bail was moved in June 2015.
Learned HCGP has submitted that the case is already
posted for framing charges and the next date of hearing
is 22.3.2016. It is further submitted that the case was
committed to the sessions court on 19.1.2015. In the
light of no supervening circumstances forthcoming in
the present case, it would not be prudent to cancel bail
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at this stage. If the State intends to move for
cancellation of bail, normally it should be done at the
earliest.
21. On the other hand, it would be better to give
appropriate directions to the concerned court before
which the matter is pending, relating to the disposal of
the case expeditiously. It need not be reiterated that
where a clear prima facie case is forthcoming in regard
to the offence of rape, instead of releasing the accused
on bail, it would be better to take up the case for trial at
the earliest. For the reasons stated above, this is not a
fit case to cancel bail at this stage.
22. Accordingly, following order is passed:
ORDER
I) The petition filed under Section 439(2), Cr.P.C. is dismissed.
II) Notwithstanding dismissal of the petition, the respondent-accused shall attend the jurisdictional police station once a week on every Sunday 18 between 9.00 a.m. and 5.00 p.m. till disposal of the case. The court of III Additional sessions judge to which the case is committed, shall frame charges on 22.3.2016 without fail and hold trial at the earliest, preferably within three months from 22.3.2016.
III) The accused shall not involve himself in criminal activity. It need not be reiterated that when once the trial starts, it should normally be on a day-to-day basis as per the mandate of Section 309, Cr.P.C.
Office is directed to send a copy of this order to the III Additional Sessions Judge, Hassan, for reference and compliance, without undue delay.
Sd/-
JUDGE vgh*