Karnataka High Court
Nagendra vs The State Of Karnataka on 5 February, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.6902 OF 2018 C/W
CRIMINAL PETITION NO.6903 OF 2018
IN CRIMINAL PETITION NO.6902/2018
BETWEEN:
Nagendra,
S/o. Krishnappa,
Aged about 37 years,
R/at No.25, near Church Road,
3rd Stage, Srirampura,
Mysuru - 570 058. ...Petitioner
(By Sri Chandrashekar R.P., Advocate for
Sri Sunilkumar, S., Advocate)
AND:
The State of Karnataka,
By CID Police,
(Malleshwaram P.S.),
Bengaluru - 03.
Rep. by Spl. Public Prosecutor. Respondent
(By Sri Ashok N. Nayak, SPP)
This Criminal Petition is filed under Section 439 of
the Code of the Criminal Procedure Code praying to
enlarge the petitioner on bail in Crime No.37/2016
(Spl.C.C.No.417/2016) of Malleshwaram Police Station,
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Bengaluru City for the offence P/U/S 411, 454, 457,
380, 381, 461, 166, 120B, 201 R/w Section 109 of IPC,
under Section 115 and 23 of the Karnataka Education
Act, Section 13(1) (D), 13(2) of Prevention of Corruption
Act and 3(1) (II), 3(2), 3(4), 3(5) of Karnataka Control of
Organized Crime Act.
IN CRIMINAL PETITION NO.6903/2018
BETWEEN:
Thimmegowda,
S/o. Aravegowda,
Aged about 37 years,
R/at No.2857, 2nd Cross,
2nd Main, Sharadadevinagar,
Mysuru - 570 005. ...Petitioner
(By Sri Chandrashekar R.P., Advocate for
Sri Sunilkumar, S., Advocate)
AND:
The State of Karnataka,
By CID Police,
(Malleshwaram P.S.),
Bengaluru - 03.
Rep. by Spl. Public Prosecutor. Respondent
(By Sri Ashok N. Nayak, SPP)
This Criminal Petition is filed under Section 439 of
the Code of the Criminal Procedure Code praying to
enlarge the petitioner on bail in Crime No.37/2016
(Spl.C.C.No.417/2016) of Malleshwaram Police Station,
Bengaluru City for the offence P/U/S 411, 454, 457,
380, 381, 461, 166, 120B, 201 R/w Section 109 of IPC,
under Section 115 and 23 of the Karnataka Education
Act, Section 13(1) (D), 13(2) of Prevention of Corruption
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Act and 3(1) (II), 3(2), 3(4), 3(5) of Karnataka Control of
Organized Crime Act.
These Criminal Petitions coming on for Orders,
this day, the Court made the following:
ORDER
Criminal petition No.6902/2018 has been filed by the petitioner-accused No.8 and criminal petition No.6903/2018 has been filed by the petitioner-accused No.7 under Section 439 of Cr.P.C. to release them on bail in Spl. C.C. No.471/2016 for the offences punishable under Section 411, 454, 457, 380, 381, 461, 120b, 201 R/w Section 109 of IPC, 115 and 23 of the Karnataka Education Act of 1983 and under Section 13(1) (d), 13(2) of PC Act and also under Section 3(1) (ii), 3(2), 3(4), 3(5) of KCOCA pending on the file of principal City Civil and Sessions Judge, Bengaluru.
2. I have heard the learned counsel for petitioners and the learned SPP Sri Ashok N. Nayak for respondent-State.
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3. Brief facts of the prosecution case are that the Joint Director (Examinations), Pre-University Board, Bengaluru, lodged the complaint dated 21.03.2016 against unknown persons alleging that II PUC Annual Exams for the academic year 2015-16 were scheduled to be held from 11.03.2016 to 28.03.2016. On 21.03.2016, examination was conducted for Chemistry (New Syllabus) subject. It is further alleged that on 21.03.2016, it came to the knowledge that a facsimile question paper of II PUC Chemistry (New Syllabus) subject was leaked out prior to the commencement of the examination i.e., at about 7.29 a.m. Later when the leaked out facsimile question paper was compared with the question paper given for the examination of Chemistry Subject on 21.03.2016, it corroborated. Complainant requested the respondent-Malleshwaram Police to investigate the matter. On 30.03.2016 the said case was transferred from respondent Police to CID, Bengaluru, and during investigation the CID Police found that leaked question paper was circulated -5- through WhatsApp of mobile phones and traced the cellular mobile numbers from which the leaked question paper was circulated. Then, the CID Police enquired accused Nos.1 to 3 and subsequently accused Nos.1 to 3 were arrested and their statements were recorded on 04.04.2016. Based on the voluntary statements of accused Nos.1 to 3, it was found by the CID Police that few others are also involved in circulating the leaked question paper for financial gain from beneficiaries. Based on the voluntary statement of accused Nos.5 and 8, it was found that the petitioners in the above petitions were also involved in circulation of the leaked question paper for money. The further allegations that accused had sold the leaked question paper and had collected the money. On 11.04.2016 the CID Police requested the jurisdictional Additional Chief Metropolitan Magistrate, Bengaluru, for inserting Sections 120B and 201 of IPC in the said crime i.e., Crime No.37/2016, which was permitted by the said Court. On 18.04.2016 the above petitioners were -6- produced before the Court and they were remanded to judicial custody and even till today they are in judicial custody.
The materials also show that on 23.03.2016, there was an order by the Government of Karnataka to hand over the case to CID Police. On 20.04.2016, the Investigating Officer submitted the report to Addl. Director General of Police to invoke the provisions of Karnataka Control of Organised Crimes Act (hereinafter referred to as 'KCOCA') and accordingly, the provisions of KCOCA are also invoked in the said crime.
The above petitioners approached the Principal City Civil and Sessions Judge, Bengaluru, seeking their release on bail and the said bail petitions were rejected by the concerned Court.
4. It is the submission of the learned counsel for petitioners that recently, this Court in Criminal Petition No.1853/2018 dated 08.08.2018 has released -7- accused No.3 on bail. On the ground of parity, accused Nos.7 and 8 are also entitled to be released on bail. He further submitted that accused Nos.2 and 3 are the kingpins and they have been already released on bail, but the only allegation made as against the accused- petitioners is that they are acting as agents by bringing the students for the purpose of taking question papers by paying the money. He further submitted that subsequently, the State has preferred petitions for cancellation of bail and the same were came to be dismissed. This aspect has also been considered and appreciated by this Court while granting bail to accused No.3. He further submitted that under the said circumstance, any number of bail petitions can be filed and it will not amounts to reviewing of earlier order. When the changed circumstances have been put forth by the petitioners-accused, then, this Court can exercise the power and grant bail. He further submitted that charge has not yet been framed and trial has not yet commenced. On these grounds, he prays to allow -8- the petitions and to release the accused-petitioners on bail.
5. Per contra, learned SPP appearing for respondent-State submitted that on the earlier occasion, petitioners-accused Nos.7 and 8 approached this Court by filing petition and this Court considering the entire material and statement of witnesses produced in this behalf dismissed the said bail application. He further submitted that the said order has reached its finality. The accused petitioners have not preferred any petition or appeal challenging the said order. Now, if the present petition is entertained, it amounts to nothing but reviewing of the earlier order passed by this Court which is not admissible in law. He further submitted that after granting of bail to accused No.3, again he has involved in paper leakage in respect of P.S.I. examination and further submitted that if the accused petitioners are enlarged on bail, in that -9- occasion, they may indulge in similar type of activities. On these grounds, he prays to dismiss the petitions.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which have been made available along with the petitions by the learned counsel appearing for the parties.
7. It is true that earlier, the bail applications filed by the petitioner-accused Nos.7 and 8, after considering the case on merits were came to be dismissed by this Court vide order dated 23.11.2016. Thereafter, the petitioner-accused No.7 approached this Court in Criminal Petition No.7832/2017. This Court by order dated 14.11.2017 has came to conclusion that there are no changed circumstances and ultimately, the petition came to be dismissed. The only ground on which the accused- petitioners are before this Court is that this Court has granted bail to accused No.3 by order dated 08.08.2018 and the ground of parity be exercised in this particular behalf.
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8. As could be seen from the records, the order dated 08.08.2018 was came to be passed subsequently after passing of orders dated 23.11.2016 and 14.11.2017 and in the said order, this Court has also considered the order passed by this Court dated 23.11.2016 and thereafter, by considering the fact that accused Nos.2, 4 and 6 have been granted bail and on the basis of the said ground, this Court has granted bail.
9. By going through the records, it indicates that this Court by exercising the power, has granted bail to accused Nos.2, 4 and 6 and subsequently the application filed by accused No.3 has also been considered and released him on bail. When the petitioners-accused have come before this Court on the ground of parity alone and in the earlier petitions though the petitions were dismissed with respect of other accused persons, this Court has exercised the power and granted bail in Crl.P.No.1853/2018 only in
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the changed circumstances. In that light, the petitioners are entitled to be released on bail on the ground of parity.
10. Be that as it may. As could be seen from charge sheet material, it is accused Nos.2 and 3 who are the kingpin and main accused, they and accused No.3 has been already released on bail. The only allegation which has been made as against the accused Nos.7 and 8 is that they have acted as agents to bring the students to accused Nos.1 to 4 and supported the act of accused Nos.1 to 4. No serious allegation as against accused- petitioners are made. No doubt, learned SPP has submitted that the present petition is nothing but reviewing of the earlier order passed by this Court, this Court cannot entertain the bail petition if there are no changed circumstance. But the petitioners have approached this Court on the ground of parity, on the ground that subsequently after the dismissal of the petition, accused No.3 has been released on bail. Even
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during the course of arguments, learned SPP submits that subsequently, after release of accused No.3, he has been involved in similar type of criminal activities, but that can be checked by imposing stringent conditions.
11. In the light of the above discussion, the bail applications filed by the petitioners are allowed and the petitioners-accused Nos.7 and 8 are ordered to be released on bail in SPl.C.C.No.417/2016 on the file of Principal City Civil and Sessions judge for the offences punishable under Section 411, 454, 457, 380, 381, 461, 120b, 201 R/w Section 109 of IPC, 115 and 23 of the Karnataka Education Act of 1983 and under Section 13(1) (d), 13(2) of PC Act and also under Section 3(1) (ii), 3(2), 3(4), 3(5) of KCOCA pending on the file of principal City Civil and Sessions Judge, Bengaluru subject to the following conditions:
1. Petitioners-accused Nos.7 and 8 shall execute a personal bond for a sum of Rs.2,00,000/-
(Rupees Two lakhs only) with two sureties each
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for the likesum to the satisfaction of the trial Court.
2. They shall not tamper with the prosecution evidence directly or indirectly and they shall not threaten the prosecution witnesses.
3. They shall appear before the Court regularly during the trial.
4. They shall not involve themselves in any such similar criminal activities in future. If any such representation is made about their involvement, in such case, the State is at liberty to apply for cancellation of bail.
5. They shall mark their attendance once in 15 days before the jurisdictional police till trial is concluded.
Sd/-
JUDGE PN/-