Karnataka High Court
Sri. Sangappa S/O Neelappa Kadapatti vs The State Of Karnataka on 15 September, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 15 t h day of September 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Revision Petition No.100250/2017
Between:
Sri. Sangappa,
S/o Neelappa Kadapatti,
Age: 45 Yrs, Occ: Agriculture,
R/O Kotikalla,
Tq: Badami and Dist: Bagalkot. ...Petitioner
(By Sri. Santosh B Malagoudar, Advocate)
And:
The State of Karnataka,
Through PSI Guledagudda Police Station,
Reptd by Addl SPP, SPP Office,
High Court of Karnataka,
Dharwad Bench. ...Respondent
(By Sri. R.Ravindra Naik, HCGP)
This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Cr.P.C.,
seeking to set aside the order dated 22.08.2017
passed by the court of II Addl. District and
Sessions Judge, Bagalkot in Guledgudda
P.S.Crime No. 44 of 2017 and to consequently
allow the application dated 4.8.2017 and the
petitioner be directed to be released on bail in
2
Guledagudda P.S.Crime No.44 of 2017 for the
offences punishable under Sections 376, 354(A),
511 of IPC read with Sections 8, 12 of POCSO Act
2012.
This Criminal Revision Petition coming on for
Hearing this day, the Court, made the following:
ORDER
This is a petition filed by the petitioner/accused under Section 397 read with Section 401 of the Code of Criminal Procedure being aggrieved by the order dated 22.08.2017 passed by the Court of the II Additional District and Sessions Judge, Bagalkot in Guledagudda P.S. Crime No.44/2017. In this revision petition, the petitioner/accused has sought for setting aside the said order and consequently, prayed that the application dated 04.08.2017 be allowed and the petitioner/accused may be released on bail for the offence punishable under Sections 376, 354A, 511 of IPC read with Sections 8, 12 of 3 the Protection of Children from Sexual Offences Act, 2012, in the interest of justice and equity.
2. Brief facts of the case, as pleaded in the petition, are that the complainant is one Manjula, wife of Rangappa Kamatar. On 02.05.2017, she went to the respondent-police station and lodged a complaint against the petitioner alleging that she is resident of Kottekalla, and is residing along with her family consisting of her husband and two children viz., Kallappa 10 years and Kanchana aged six years. The daughter of the complainant is admitted to Anganawadi in the said village. The house of the petitioner is situated in front of her house and as such the daughter of complainant used to go and play in the house of the petitioner. On 29.04.2017, at abut 11.00 a.m., when the complainant and her mother-in-law were near her home, the daughter of the complainant ws playing in front of their home and the petitioner is alleged 4 to have called Kanchana to get him vimal packet from the shop and accordingly Kanchana took ten rupees from him and went to shop and brought vimal packet to the petitioner and thereafter the petitioner is alleged to have called Kanchana into his house for playing, and at 11.10 a.m. her daughter went inside the house of petitioner. At 11.30 a.m., in order to serve lunch for her daughter, complainant went to the house of the petitioner and called her, but there was no response from inside; eventually, she went inside the house of the petitioner and the bedroom door was open and she saw therein that the petitioner was naked and her daughter was also lying naked on the floor and the petitioner was making physical advances on her daughter's body. The complainant, on seeing the same, screamed and, at that time, the petitioner is alleged to have dressed himself and ran away from the house and thereafter Saraswati, the mother-in-law of the 5 complainant, Ninbawwa, Kallappa gathered and they all together enquired her daughter and she revealed that the petitioner had undressed her and made her to sleep with him. Thus, with these allegations the complaint came to be filed against the present petitioner which came to be registered in Crime No.44/2017 for the aforesaid offences.
3. When the investigation of the case was not completed within 90 days from the date of arrest of the petitioner and remanding him to judicial custody, on the 94 t h day, the petitioner herein filed a bail application under the provision of Section 167(2)(a)(i) of the Code of Criminal Procedure, along with an advancement application of the case before the concerned Sessions Judge. The learned Sessions Judge made an endorsement on the said application mentioning 'put-up' and then on the application under Section 167(2)(a)(i) of Cr.P.C. there is signature of the learned 6 Sessions Judge. It goes to show that the Public Prosecutor prayed time for filing objections and hence, it was ordered to be posted on 17.08.2017 that was the date which was given earlier.
4. On 17.08.2017, regular date, the matter was taken up for hearing. However, on 16.08.2017 itself, charge-sheet was placed before the Court. Thereafter, on 22.08.2017, the learned Sessions Judge ultimately passed an order on the bail application rejecting the same. Being aggrieved by the same, the revision petitioner/accused is before this Court. He has challenged the legality and correctness of the order of the learned District and Sessions Judge, the order dated 22 n d day of August 2017 on the grounds as mentioned in paragraphs 7 to 16 of this criminal revision petition.
5. Heard the learned counsel appearing for the revision petitioner/accused and so also the 7 learned High Court Government Pleader for the respondent-State.
6. Learned counsel for the petitioner made the submission that the accused was arrested on 02.05.2017 and he was remanded to judicial custody, and the 90 days from there, if calculated, will be the 31 s t July 2017, but the charge-sheet was not filed within 90 days, and therefore, on the 94 t h day from the date of his arrest i.e., on 04.08.2017, the petitioner filed the bail application under Section 167(2) of Cr.P.C., along with an advancement application. The learned counsel further submitted that the learned District and Sessions Judge ought to have considered the bail application on the very day and immediately the court should have passed the order releasing the petitioner/accused on bail invoking Section 167(2) of Cr.P.C. The learned counsel submitted that as the Public Prosecutor 8 prayed time to file objections to the said application, the learned Sessions Judge posted it to the regular date i.e., 17.08.2017.
7. Hence he made submission that once the charge sheet is not filed within 90 days, the accused person is having indefeasible right which cannot be taken away by any means. Hence it is his submission, the order of the learned Sessions Judge posting the matter to 17.8.2017 and in the meanwhile on 16.8.2017 the charge sheet came to be filed, hearing the matter on 17.8.2017 and rejecting the bail application holding that the charge sheet is already placed before the Court, learned counsel made submission that the Court at paragraph No.12 of its order referring to the decision of the Hon'ble Apex Court rendered in the case of S adhwi Pr aghya S ingh and quoting the paragraph ultimately rejected the bail application. Hence he made the submission that this view 9 taken by the learned Sessions Judge is not correct in the eye of law. Even he also made submission that the principles enunciated in the case of Sadhwi Pr aghya Singh is also subsequently overruled by the Full Bench decision of the Hon'ble Apex Court holding that it has also relied upon another division bench decision of the Hon'ble Apex Court reported in (2014)9 SCC 457 case of Union of Ind ia vs. Nir ala Yad av. Hence he submitted to allow the revision petition, set aside the order passed by the learned Sessions Judge and to allow the application granting bail to the revision petitioner-accused.
8. Per contra, learned High Court Government Pleader made submission that in this case though the application under section 167(2) of Cr.P.C. came to the filed on 94 t h day i.e., on 4.8.20,17 the accused person has not at all insisted the Court to hear the said application on 10 the very day and submitting to the Court that the accused person is ready to furnish surety on that day itself. Therefore the learned High Court Government Pleader made submission, when the accused person has not insisted for hearing the said application on that day only, it amounts that he waived his statutory right allowing the Court to post the mater on 17.8.2017. Hence he submitted that in this regard the learned Sessions Judge has rightly observed in the bail order referring to the decision of the constitutional bench in respect of Sanjay Dutt's case, so also referring to the principle enunciated in Sadhwi Pr aghya Singh's case. Hence he made the submission, there is no illegality committed by the Court below nor any perverse and capricious view is taken. Hence he submitted, there is no merit in the revision petition and the same has to be rejected. 11
9. I have perused the grounds urged in the petition. The order impugned in this revision petition passed by the learned District and Sessions Judge, on the bail application filed under section 167(2)1(a)(i) of Cr.P.C., so also I have perused the grounds urged in the petition. It is an undisputed fact, according to both the sides, the revision petitioner was arrested on 2.5.2017 and he was remanded to judicial custody. The Investigating Officer ought to have completed the investigation within 90 days and ought to have filed the charge sheet within 90 days. The 90 days falls on 31.7.2017. Admittedly even according to the prosecution, on 31.7.2017 also the charge sheet was not filed, then on 4.8.2017 the revision petitioner accused moved an application under section 167(2) of Cr.P.C. accompanied by an advancement application, requesting the Court to advance the matter. The learned Sessions Judge made an endorsement on the said application as 12 'put up', which was dated 4.8.2017 itself. The further endorsement on the application itself goes to show that the Public Prosecutor sought time for filing the objection statement and the matter was posted to 17.8.2017 i.e., the regular date which was already given. The materials also go to show that on 16.8.2017 the charge sheet came to be filed and on the regular date i.e., on 17.8.2017 the matter was heard and the order came to be passed on 22.8.2017. By the said order the learned Sessions Judge rejected the application. Referring to the order of the learned Sessions Judge in paragraph No.12 the learned Sessions Judge observed as under:
12. As could be seen f rom the order sheet accused was remanded to judicial custody on 2.5.2017 and when the alleged off ences are tr iable by the Cour t of Sessions/Special Cour t, police ought to have f iled charge sheet on 31.7.2017 which was the last d ay or to say in other 13 words which was the 90 t h d ay f or f iling the charge sheet. However the same was not f iled on the said d ay. In the mean while advocate f or accused f iled advancemen t application along with bail application under section 167 of Cr.P.C.
on 4.8.2017. However he did not press for argument on the same d ay of f iling the advancement application. Hence the said application was ordered to be put up on the regular date of appearance of the accused f rom jud icial custody i.e., on 17.8.2017. Accordingly the bail application was heard on 17.8.2017 by which time already charge sheet was f iled by the police. Theref ore once the charge sheet is f iled bef ore disposal of the said bail application, according to well settled proposition of law the accused loses his r ight to be enlarged on statu tory bail and the mater has to be decided only on merits. This opinion of the Cour t f inds strength f rom the decision of Hon'ble Apex Cour t rendered in the case of Sadh wi Pr aghya Singh in which case the Hon'ble Apes Cour t by 14 relying upon the Constitu tional Bench decision of the said Cour t in the case of Sanjay Dutt held as under:
"that righ t to def ault bail is not absolute or indef easible r ight.
In other words even if an application f or bail is f iled on the ground that charge sheet was not f iled within 90 days, but before consideration of the same and bef ore being released on bail if charge sheet is filed the said right to be released on bail would be lost. Af ter f iling of the charge sheet if the accused is to be released on bail it can be only on mer its".
10. That right to be released is not absolute or indefeasible right, in other words even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before consideration of the same, and before being released on bail, if the charge sheet is filed, the said right to be released on bail would be lost. After filing of the charge sheet if the accused is to be released on bail, it can be only on merits. 15
11. In paragraph No.13 of the said order, the Court further observed, "theref ore in the light of the said proposition of law the application f iled by the accused becomes redundan t and theref ore does not merit f or consider ation". With this observation the said application came to be rejected by the concerned Court.
12. Looking to the very observation made by the Court in paragraph No.12 of its order, there is no mention that the Court specifically asked the learned counsel for the accused who moved the bail application, whether the accused is prepared to furnish surety on the very same day, so also there is no mention in the order of the Court below in respect of asking either the accused or the counsel appearing for the accused. There is a observation that they are not prepared to furnish security on the very day and seeking time at their end. Materials go to show that it is because of the 16 time sought by the public prosecutor for filing objection statement to the said application, it was posted to 17.8.2017. Therefore the observation made by the Court below as the matter was not insisted to be heard on the very day and when it was posted to the regular date, in the meanwhile charge sheet is filed, the accused has lost his right is not the correct observation made by the concerned Sessions Judge. So far as the principle enunciated in the decision of Sadhwi Pr aghya Singh's case, which is relied upon by the learned Sessions Judge, I am referring to the decision of the Hon'ble Apex Court relied upon by the learned counsel for the revision petitioner herein reported in (2014) 9 SCC 457 rendered in the case of Union of Ind ia through Centr al Bureau of Investigation vs. Nir ala Y ad av alias Raja Ram Y adav alias Deepak Yad av. Looking to the said decision and the observations made in this subsequent decision, the relevant paragraph of the said decision in 17 para No.45, 46 and 47 of the said decision their lordships have held as under:
45. The opinion expressed in par agr aph 54 and 58 in Pragyna Singh Thakur which we have emphasized, as it seems to us, runs counter to the principles stated in Ud ay Mohanlal Acharya which has been f ollowed in Hassan Ali Khan and S ayed Mohd.
Ahmad Kazmi. The decision in Sayed Mohd. Ahmad Kazmi case has been rendered by a three-Judge Bench. We may hasten to state, though in Pragyna Singh Thakur case the learned Judges have ref erred to Uday Mohanlal Acharya case but have stated the principle that even if an application f or bail is filed on the ground that the charge-sheet was no t f iled within 90 days, but before the consideration of the same and bef ore being released on bail, if charge-sheet is f iled the said r ight to be enlarged on bail is lost. This opinion is contr ary to the earlier larger Bench decisions and also runs counter to the subsequent three- 18 Judge Bench decision in Mustaq Ahmed Mohammed Isak case. We are disposed to think so, as the two-Judge Bench has used the words "bef ore consideration of the same and bef ore being released on bail", the said principle specif ically str ikes a discordan t note with the proposition stated in the decisions rendered by the larger Benches.
46. At this juncture, it will be appropr iate to ref er to the dissenting opinion by B.N. Agar wal, J. in Uday Mohanlal Acharya case. The learned Judge dissen ted with the major ity as f ar as in terpretation of the expression "if not already availed of" by stating so:
"29. My learned brother has ref erred to the expression 'if not already availed of ' ref erred to in the judgmen t in Sanjay Dutt case f or arr iving at Conclusion 6. According to me, the expression 'availed of ' does not mean mere f iling of application f or bail expressing therein willingness of the accused to f urnish the bail bond. What will happen if on the 61st d ay an application f or 19 bail is f iled f or being released on bail on the ground of def ault by not f iling the challan by the 60th d ay and on the 61st d ay the challan is also f iled by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? In vie w of the sever al decisions ref erred to above and the requirements prescr ibed by clause (a)(ii) of the proviso read with Explanation I to Section 167(2) of the Code, as no bail bond has been f urnished, such an application f or bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such r ight is extinguished the moment the challan is f iled.
30. In this background, the expression 'availed of ' does not mean mere f iling of the application f or bail expressing thereunder willingness to f urnish bail bond, but the stage for actual f urnishing of bail bond must reach. If the challan is f iled bef ore that, then there is no question of enf orcing the right, howsoever valuable or indef easible it may be, af ter f iling of the challan because thereaf ter the right under def ault clause cannot be exercised."20
On a caref ul reading of the af oresaid two par agr aphs, we think, the two-Judge Bench in Pr agyna S ingh Thakur case has some what in a similar matter stated the same. As long as the majority vie w occupies the f ield it is a bind ing precedent. That apar t, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi case.
Keeping in vie w the principle stated in Sayed Mohd. Ahmad Kazmi case which is based on three-Judge Bench decision in Ud ay Mohanlal Acharya case, we are obliged to conclude and hold that the principle laid down in par as 54 and 58 of Pragyna S ingh Thakur case (which have been emphasized by us: see par as 42 and 43 above) does not state the correct pr inciple of law. It can clearly be stated that in vie w of the subsequent decision of a larger Bench that cannot be treated to be good law. Our view f inds suppor t f rom the decision in Union of Ind ia v. Arviva Industr ies Ind ia L td.
47. Coming to the f acts of the instant case, we f ind that prior to the 21 date of expiry of 90 d ays which is the initial per iod f or f iling the charge-sheet, the prosecution neither had f iled the charge-sheet nor had it f iled an application f or extension. Had an application f or extension been f iled, then the matter would have been totally diff erent. Af ter the respondent-accused f iled the application, the prosecution submitted an application seeking extension of time f or f iling of the charge- sheet. Mr. P.K. Dey, learned counsel f or the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal bu t on a studied scrutiny of the same we f ind that the said decision only deal t with whether extension could be sought from time to time till the completion of per iod as provided in the statu te i.e., 180 days. It did not address the issue wh at could be the eff ect of not f iling an application f or extension prior to expiry of the per iod because in the f actual matr ix it was not necessary to do so. In the instan t case, the d ay the accused 22 f iled the application f or benef it of the def ault provision as engr af ted under proviso to sub-section (2) of Section 167 of Cr.P.C. the Cour t required the accused to f ile a rejoinder-aff id avit by the time the initial per iod provided under the statu te had expired. There was no question of any contest as if the application f or extension had been f iled prior to the expiry of time. The adjournment by the learned Magistr ate was misconceived. He was obliged on th at d ay to deal with the application f iled by the accused as required under Section 167(2) CrPC. We have no hesitation in saying that such procr astination frustr ates the legislative mand ate. A Cour t cannot ac t to extinguish the right of an accused if the law so conf ers on him. Law has to prevail. The prosecution cannot avail such subterf uges to f rustr ate or destroy the legal r ight of the accused. Such an ac t is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not f iling 23 the application with in the time which it was entitled to do so in law bu t made all adroit attemp ts to redeem the cause by its conduct.
13. I am also referring to another full bench decision of the Hon'ble Apex Court reported in (2013) 2 SCC (Cri) 488 in the case of Sayed Mohd. Ahmad Kazmi vs. S tate (Government of NCT of Delhi) and others. Looking to the relevant para No.25 which also reads as under:
25. Having carefully considered the submissions made on behalf of the respective parties, the relevan t provisions of law and the decision cited, we are unable to accept the submissions advanced on behalf of the S tate by the learned Additional Solicitor Gener al Mr.Raval. There is no denying the f act th at on 17.7.2012, when CR No.86 of 2012 was allowed by the Additional Sessions Judge and the custody of the appellan t was held to be illegal and an application under Section 167(2) CrPC 24 was made on behalf of the appellan t f or gr ant of statu tory bail which was listed for hear ing. Instead of hearing the application, the Chief Metropolitan Magistr ate adjourned the same till the next d ay when the Public Prosecutor f iled an application f or extension of the per iod of custody and investigation and on 20.7.2012 extended the time of investigation and the custody of the appellan t f or a fur ther per iod of 90 d ays with retrospective eff ect f rom 2.6.2012.
Not only is the retrospectivity of the order of the Chief Metropolitan Magistr ate untenable, it could not also def eat the statutory righ t which had accrued to the appellan t on the expiry of 90 days f rom the d ate when the appellan t was taken in to custody. Such right, as has been commen ted upon by this Cour t in S anjay Dutt and the other cases cited by the learned Additional Solicitor General, could only be distinguished (sic extinguished) once the charge-sheet had been f iled in the case and no application has been made prior 25 thereto f or gr ant of statu tory bail. It is well-established th at if an accused does not exercise his righ t to gran t of statu tory bail before the charge-sheet is f iled, he loses his r ight to such benef it once such charge-sheet is f iled and can, thereaf ter, only apply f or regular bail.
14. So also the another decision relied upon by the learned counsel for the revision petitioner- accused in the case of Rakesh Kumar Paul vs. S tate of Assam, rendered by the Hon'ble Apex Court in Special Leave to Appeal (Crl.) No.2009/2017 dated 16.8.2017. Looking to the principles enunciated in all these three decisions, the Hon'ble Apex Court made the legal position very clear that once the charge sheet is not filed within the period prescribed, there will be indefeasible right accruing to the accused person on which he is entitled to be released on bail. In the case on hand, the learned Sessions Judge 26 ought to have taken the application for hearing on 4.8.2017 itself and ought to have passed the order in the said application; adjourning the matter to regular date 17.8.2017 is misconceived in this case. Once the Court posted the matter on 17.8.2017 and holding that on that day when the case was taken up for consideration, the charge sheet was already filed and hence the accused cannot have such a right to be released on statutory bail is not the correct view taken by the learned Sessions Judge in the matter. Therefore rejection of the application on these grounds is not in accordance with the law as laid down by the Hon'ble Apex Court in the subsequent decisions. Therefore the petitioner-accused has made out a case. Accordingly the revision petition is allowed.
15. The order passed by the learned Sessions Judge rejecting the bail application is 27 hereby set aside and the application filed by the revision petitioner-accused under Section 167(2)1(a)(i) of Cr.P.C. is hereby allowed and he is ordered to be released on bail of the said offences subject to the following conditions.
i. Petitioner has to execute personal bond for a sum of `1,00,000/- and furnish one solvent surety for the like sum to the satisfaction of concerned Court.
ii. Petitioner shall not tamper with any of the prosecution witnesses directly or indirectly.
iii. Petitioner shall appear before the concerned Court regularly.
Sd/-
JUDGE KMS/Mrk/-