Karnataka High Court
B. Thimmappa vs The State Of Karnataka on 6 July, 2017
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06th DAY OF JULY, 2017
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
CRIMINAL PETITION No.2109 OF 2017
BETWEEN:
B. THIMMAPPA
S/O BHIMABOVI
AGED ABOUT 36 YEARS
AGRICULTURIST
MCRP COLONY, LINGADAHALLI HOBLI
TARIKERE TALUK
CHICKMAGALORE DISTRICT - 577 228 ...PETITIONER
(BY SRI.S.G. RAJENDRA REDDY, ADV.)
AND:
1. THE STATE OF KARNATAKA
BY LINGADAHALLI POLICE STATION
CHICKMAGALUR DISTRICT
REPRESENTED BY S.P.P
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
2. MURTHY
S/O RAMABHOVI
AGED MAJOR
3. PARAMESHA
AGED MAJOR
4. SHIVA
AGED MAJOR
5. GIRISHA
AGED MAJOR
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6. MOHANA
AGED MAJOR
7. SAKAMMA
AGED MAJOR
8. SHARADA
AGED MAJOR
9. SHANTHA
AGED MAJOR
10. PUTTI
AGED MAJOR
11. VENKABOVI
AGED MAJOR
12. THIMMABOVI
AGED MAJOR
13. RENUKA
AGED MAJOR
14. KUMARA
AGED MAJOR
15. DODDAMMA
AGED MAJOR
16. HANUMANTHAMMA
AGED MAJOR
ALL ARE AGRICULTURISTS
RESIDENTS OF MCRP COLONY
LINGADAHALLI HOBLI
TARIKERE TALUK
CHICKMAGALORE DISTRICT - 577 228 ...RESPONDENTS
(BY SRI. S. VISHWAMURTHY, HCGP FOR R1;
SRI. M. VIKAS, ADV. FOR
SRI. SACHIN.B.S, ADV. FOR R2 TO R16)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C. PRAYING TO CANCEL THE BAIL GRANTED TO
THE RESPONDENTS NO.2 TO 16 BY THE LEARNED J.M.F.C. BY
ORDER DATED 23.01.2017 IN CRIME NO.10/2017 OF
LINGADAHALLI POLICE STATION, CHIKMAGALURU DISTRICT
FOR THE OFFENCES P/U/S 141, 143, 144, 147,148, 323, 324,
354, 504, 506 R/W 149 OF IPC PENDING ON THE FILE OF
ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C., TARIKERE,
CHICKMAGALURU DISTRICT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
Heard Sri S.G.Rajendra Reddy, learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State and Sri M.Vikas, learned Counsel appearing for Sri Sachin.B.S, learned counsel appearing for R2 to R16.
2. The legality of the bail granted to the respondent Nos.2 to 16 under the provisions of Section 436 Cr.P. C. is called in question in this petition by the defacto complainant. The fact is that the respondent- police registered FIR against the accused persons in respect of the offences punishable under Sections 141, 4 143, 144, 147, 148, 323, 504, 324, 354, 506, r/w 149 of IPC.
3. The accused persons voluntarily surrendered before the Court and moved the application under Section 436 Cr.P.C. It appears that the Public Prosecutor at the same time submitted his objections statement to the application. Learned Magistrate held that the offences alleged against the accused are bailable in nature and they were ready to offer surety, thus they were enlarged on bail.
4. Sri S.G.Rajendra Reddy, learned counsel for the petitioner submits that out of alleged offences in the FIR, offences under Section 324 and 354 are non- bailable in nature. In that view of the matter, the trial Court could not have admitted the accused persons to bail without following the procedure contemplated under Section 437 of Cr.P.C. Hence, he seeks to set- 5 aside the bail order granted in favour of the accused persons.
5. Sri Vikas, learned counsel appearing for R2 to R16 submits that the bail order granted in favour of the accused persons is a matter between the Court and accused, merely quoting the provision of Section 436 Cr.P.C. will not enure to the benefit of the defacto complainant to seek cancellation of the bail, since it is not his case that the accused persons have misrepresented or suppressed any material or they skip the terms of the bail. To seek cancellation of the bail order of the trial Court, the only avenue available to the petitioner is under Section 482 of Cr.P.C. and not in the present form. The public prosecutor had filed the objection statement to the bail application. For all purpose it is an order passed under Section 437 of Cr.P.C., only by mistake quoted wrong provision as Section 436 of Cr.P.C. and the petition is liable to be rejected.
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6. With the above rival submissions, perused the order under challenge regarding maintainability of the petition. Similar contention fell for consideration of the Apex Court in the matter of Gurcharan Singh and others vs. State (Delhi Administration) and connected matter reported in AIR 1978 SC 179. Wherein, the Apex Court had observed that the High Court had jurisdiction to entertain an application under Section 439(2) Cr.P.C. for cancellation of bail, though the accused persons are admitted for bail by the Court below. Thus, the petition is maintainable.
7. Admittedly, the order under challenge is not a considered order. The court has mechanically proceeded under the impression that all the offences alleged are bailable. In that view of the matter, the order cannot sustained and the trial Court shall consider the application in accordance with the mandates of Section 437 Cr.P.C.
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8. Hence, the petition is allowed. The order passed by the trial Court on 23.1.2017 is set aside. Respondent Nos.2 to 16 are permitted to move fresh bail petition if so advised before the trial Court within two weeks from today. They shall surrender and move for fresh bail petition. Till disposal of their regular bail petition, if they are arrested by the Investigating Officer, they shall be released on bail on each of them executing a self bond for Rs.50,000/- with one surety for the likesum. Setting aside the bail order by this Court shall not have any impact on the order to be passed by the trial Court while disposal of the bail application of the accused in accordance with law.
Sd/-
JUDGE KLY/