Karnataka High Court
Prashanth Thami vs The State Of Karnataka on 9 February, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8512/2016
BETWEEN:
PRASHANTH THAMI
S/o. NARESH THAMI,
AGED ABOUT 28 YEARS
R/AT NO.52, 1ST FLOOR
4TH CROSS, M.G. GARDEN
BAZAR STREET, NEELASANDRA
BENGALURU - 560 047.
... PETITIONER
(BY HON'BLE SRI. MOHAN KUMAR D., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ASHOKNAGAR POLIC STATION
REP. BY SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
----
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.173/2016 OF ASHOK NAGAR POLICE STATION,
BENGALURU FOR THE OFFENCE PUNISHABLE U/S. 366, 376
OF IPC AND U/S 4, 6, 9 (m) AND 10 OF POCSO ACT - 2012
THIS CRIMINAL PETITION IS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
This petition is filed U/s. 439 of Cr.P.C seeking regular bail in Crime No.173/2016 registered by the Ashoknagar Police Station, Banglore, for the offence punishable U/S. 366, 376 OF IPC AND U/S 3, 4, 9 and 10 of POCSO Act - 2012.
2. It is the case of the petitioner, that initially he was granted regular bail by the Chief Judicial Magistrate Darjeeling in Crime No.173/16 registered by Ashoknagar Police station. At the time of admitting the petitioner to bail, accusations against the petitioner were confined to Section 363 of Indian Penal Code. Thereafter, on the basis of the statement of the victim, the respondent-police have inserted Section 366, 376 of Indian Penal Code and section 3, 4, , 9 and 10 of POCSO Act, 2012.
3. It is the contention of the petitioner that the earlier bail order passed by the Darjeeling court is in force. Respondents themselves made a requisition to 3 the 11th Addl. CMM Court, Mayohall, Bangalore City for cancellation of the said bail. But without passing any orders on the said requisition, the learned magistrate has taken the petitioner into custody and he has remanded him to judicial custody which is patently illegal. In support of this contention, the learned counsel has placed reliance on the Divisional Bench ruling of this court rendered in Smt.SULIYA Vs. THE STATE OF KARNATKA, BY MANGALORE SOUTH POLICE (ILR 2008 KAR 3438) as well as the decision in the case of ATAULLA AND ANOTHER Vs. STATE OF KARNATAKA (1998 CRL L.J-913).
4. The learned HCGP however opposes the bail application contending that in view of the incorporation of the provisions attracting serious offence under section 376 and under the provisions of POCSO Act, the petitioner cannot be admitted to bail at this stage. The learned HCGP submits that on the earlier occasion the petitioner himself had approached this court by filing a Crl.P.No.7357/16 and the said petition has been 4 withdrawn. Under the said circumstances the petitioner is not entitled for any relief at the hands of this court.
5. With regard to the withdrawal of Crl.P.No. 7357/16 is concerned, there is nothing in the said order to indicate that any order has been passed on merits in the said application. It was an order of withdrawal simplicitor. The claim of the petitioner is that he is entitled for the benefit of initial bail order has not been considered either in the said petition or in any other proceedings filed by the petitioner before any of the court. In the said circumstances withdrawal of the said petition does not come in the way of entertaining the present bail petition.
6. In the Division Bench decision of this court it is specifically held that when the earlier bail application is in force, there is no necessity at all to move the second bail application. In the instant case, undisputedly the earlier bail application is in force. Requisition made by the respondent to cancel the said 5 bail is still pending for consideration before the court, which pre-supposes that the benefit of the earlier bail is available to the petitioner. Further in the case reported in 1998 CRL.L.J-913, it is held that the by subsequent insertion or alteration of the charges does not have the effect of canceling the earlier bail application. In the face of this legal position, it follows that the petitioner is entitled for the benefit of the bail order which is granted by the Darjeeling court. As a result another bail is not necessary. However, for the purpose of record and to obviate any such objection being raised in the interest of the justice, this application is also allowed and the petitioner is ordered to be enlarged on bail on the same terms and conditions as ordered by the learned magistrate in the Darjeeling court. In addition, the petitioner is directed to execute a fresh bond for Rs.50,000/- (Rupees Fifty Thousand only) with one local surety for the likesum to the satisfaction of the 11TH Addl. C.M.M. Court, Bengaluru and that the petitioner shall not leave the jurisdiction of Bengaluru city without prior written permission of the trial court, the petitioner 6 shall not threaten either the victim or any of the prosecution witnesses and shall not get himself involved in any similar offences.
Sd/-
JUDGE R*