Karnataka High Court
Raghavendra Kanchan @ Barikeri Raghu vs State Of Karnataka on 25 September, 2020
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
CRIMINAL PETITION NO.3098/2020
Between:
Raghavendra Kanchan
@ Barikeri Raghu,
S/o Basava Marakala,
Aged about 38 years,
R/o Bettinamane, Barikeri,
KotathattuPost and Village,
Brahmavara Taluk,
Udupi - 576 213. ... Petitioner
(By Sri Bharath Kumar V., Advocate)
And:
State of Karnataka,
Through
Station House Officer,
Kota Police Station,
Bengaluru,
Represented by:
State Public Prosecutor,
Hon'ble High Court of Karnataka,
Bengaluru - 560 001. ... Respondent
(By Sri Mahesh Shetty, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioner on bail in Cr.
No.15/2019 registered by Kota Police Station, Udupi for the
offences p/u/s 120(B), 143, 147, 148, 449, 342, 504, 323, 324,
506, 307, 302, 212, 201 read with Section 149 of IPC.
2
This Criminal Petition coming on for orders this day, the
Court, made the following:
ORDER
Petitioner who is the accused No.9 has filed the present petition under Section 439 of Cr.P.C. seeking to be enlarged on bail in connection with his detention in S.C.No.11/2019 with respect to the complaint registered as regards to the alleged offence under Sections 120-B, 143, 147, 148, 449, 342, 504, 323, 324, 506, 307, 302, 212, 201 read with Section 149 of IPC.
2. The case that is made out by the prosecution is that FIR No. 15/2019 was registered with the respondent - Police as per the information furnished on 27.01.2019 by the informant Mr. Lohith Poojari. It was alleged that accused Nos. 1 to 3 were attempting to dig a latrine pit in their property, which was abutting to a well within the property of the informant herein. It was further alleged that in light of the said attempt made by accused Ns. 1 to 3, the informant had made representation to the civic body and had restrained the ongoing work of digging latrine pit in the property of accused Nos. 1 to 3. It is stated that 3 accused Nos. 1 to 3 nursing grudge due to restraint on the work of digging latrine pit, had allegedly conspired to do away with the life of the informant. It is submitted that on 26.01.2019 at about 10.15 p.m., when the informant was returning back to his house as he had felt threatened on coming to his house, he had contacted his friends including the deceased persons. It is submitted that when the friends of the informant came to the house of the informant, accused Nos. 1 to 3 along with other persons had attacked the informant and his friends and inflicted deadly blows to the deceased causing death of Bharath Kumar and Yathish.
3. It is the case of the petitioner that on the basis of such allegations, respondent - police had registered FIR No.15/2019 naming accused Nos. 1, 2 and 4 and arraigning four other unknown persons as accused for the alleged offence under Sections 143, 147, 148, 447, 341, 323, 302 read with Section 149 of IPC. Petitioner was apprehended on 07.02.2019 during the course of investigation on the premise that the deceased were 4 murdered at the instance of the petitioner attributing political rivalry of the informant and deceased on one side and the present petitioner on the other side. Charge sheet came to be filed and in the charge sheet, it is made out that the petitioner was the president of an organization i.e., "Barikeri Yuvaka Mandala" and the informant and the deceased persons were the members and President of "Bhagath Singh Krantikari Balaga", both the organizations were portrayed as political rivals and hence, it was alleged that accused No.9 / petitioner herein had conspired with accused Nos. 1 to 3 to commit the murder of the deceased.
4. It is to be noted that this Court by an order dated 16.07.2019 in Crl.P.No.2627/2019 had enlarged the present petitioner i.e., accused No.9 on bail. The said matter was taken up before the Apex Court by the mother of deceased Bharath Kumar in Criminal Appeal No.133/2020 (SLP (Crl.)No.9561/2019) wherein the order granting bail to the present petitioner came to be set aside and bail was cancelled. The observations of the Apex Court reads thus:-
5
"In the facts and circumstances of the case projected before us and the material available, we are of the view that the High Court ought to have considered the role of conspiracy attributed to respondent No.1 without examining the same, the High Court has granted bail to respondent No.1 by simply observing that the question as to the involvement and role of respondent No.1 is a matter for trial. The High Court has failed to consider the imputations made against respondent No.1. It was not the case of the prosecution that respondent No.1 was present on the spot. There was material available which has not been taken into consideration by the High Court. The High Court has granted bail to respondent No.1 in a very cursory manner. In our considered view, it was not a case in which bail could have been granted by the High Court. When we consider the antecedents of respondent No.1, there were 8 cases (Criminal) registered against him though in seven of those cases, he has been acquitted. Respondent No.1 is also stated to be a rowdy-sheeter. Be that as it may, in the facts and circumstances of the case, we find no case was made out to grant bail."6
5. The order of the Apex Court was passed on 20.01.2020 and subsequently, petitioner had voluntarily surrendered before the trial Court on 07.02.2020 and on 26.02.2020 petition came to be filed under Section 439 of Cr.P.C seeking to be enlarged on bail, before the learned Sessions Judge.
6. The learned Sessions Judge by an order dated 14.05.2020 has rejected the petition while observing that there are no changed circumstances and once the Apex Court has rejected the application, the Sessions Court cannot go into the matter once again. The grounds sought to be made out for grant of bail on the basis of medical documents were rejected. It was also observed that the accused / petitioner herein was an influential member of a political party. The Sessions Court while noting the possibility of threat to the prosecution witnesses and tampering of evidence, had held that such apprehension could not be brushed aside and rejected the bail petition. Subsequent to such order, the present petition has been 7 filed under Section 439 of Cr.P.C. seeking for enlargement of the petitioner who is in custody on bail.
7. The petitioner has raised various contentions in support of his claim to be enlarged on bail. It is contended that his name was not mentioned by the informant at the first instance and in the 164 statement of the informant recorded on 07.02.2019. It is further contended that there are inconsistencies in the version of the prosecution at different stages.
8. It is submitted that it was the first version of the prosecution that the attack on the deceased was in light accused Nos. 1 to 3 attempting to dig latrine pit in their property which was abutting to a well situated within the property of the informant herein and it is in that connection, there was grudge between accused Nos. 1 to 3 and the deceased and the informant. However, it is submitted that new case was sought to be made out while charge sheet was filed by the respondent - State by ascribing political rivalry between the informant and 8 deceased on one side and the petitioner and accused Nos. 1 to 3 on the other. It is submitted that the petitioner was not present at the spot and that the investigating authorities had sought to rely on the statement of accused No.1 that he was assaulting the informant and deceased persons because they had formed the rival organization viz., "Bhagath Singh Krantikari Balaga".
9. It is submitted that accused No.8 came to be enlarged on bail as per the order passed in Crl.P. No. 7077/2019 on 02.12.2019 which aspect was not considered by the Apex Court while disposing off the appeal on 20.01.2020. Accordingly, it is submitted that in light of such non-consideration, the petitioner is entitled for consideration of his application to be enlarged on bail.
10. It is contended by Sri. Bharath Kumar. V, learned counsel appearing for the petitioner that there is no bar on filing of successive bail applications in the changed circumstances and principle of constructive res judicata would not operate as regards to matters where 9 successive bail applications are being considered. He places reliance on the judgment of Allahabad High Court in the case of GAMA AND ORS. V. STATE OF UTTAR PRADESH - 1987 CRL.L.J. 242 in support of the contention that a point not urged and considered in an order disposing of an earlier bail application cannot debar invocation of such argument while considering a subsequent bail application. It is contended that the conduct of accused No.9 in voluntarily surrendering before the trial Court on 07.02.2020 after cancellation of bail by the Apex Court ought to be taken note of and this petition be considered in an appropriate manner.
11. Reliance is also placed on the judgment in the case of KALYAN CHANDRA SARKAR V. RAJESH RANJAN ALIAS PAPPU YADAV AND ANOTHER - (2005) 2 SCC 42, to contend that the successive bail application could be filed as long as there is material change in the facts situation.
12. The respondent - State has filed the statement of objections wherein they have contended that charge 10 sheet has been filed pointing out to a criminal conspiracy involving accused No.9 with other accused persons in committing the murder of Bharath Kumar and Yatish. It is further submitted that accused No. 9 is an active member of political party and elected member of Zilla Panchayat of Udupi from Kota Constituency. It is submitted that the Apex Court had noticed the gravity of offence and the criminal antecedents of accused No.9 and had cancelled the bail granted by this Court and in the absence of there being any changed circumstances, fresh application could not be filed seeking bail.
13. It is further submitted that accused No.9 had friendship with accused persons and that the complainant was a close friend of the deceased persons and that there was rivalry between association of accused No. 9 i.e, "Barikeri Yuvaka Mandala" and the group called "Bhagath Singh Krantikari Balaga" which the deceased and the others had formed. It is submitted that in light of such rivalry, accused No.9 and accused Nos. 1 to 8 had involved themselves in the commission of crime leading to the death 11 of Bharath Kumar and Yatish. It is further submitted that C.W.2 - wife of the informant had given a statement immediately after the commission of crime on 27.01.2012 implicating the petitioner herein. It is further submitted that they have justifiable reasons for the complainant not giving entire statement at an earlier point of time and that C.Ws.2 to 9 had clearly asserted that accused No.9, C.Ws.7, 8, 9 and 10 were close associates of accused No.9 much prior to the incident. It is submitted that accused No.9 was involved in 8 criminal cases and was having criminal antecedents and taking note of such circumstances the Apex Court had cancelled the bail granted by this Court. It is submitted that question of parity with accused No.8 who was enlarged on bail would not arise as accused No.8 stands on different footing. It is further asserted that as the petitioner is a politically influential person that there is possibility of threat to the prosecution witnesses and accordingly, has sought for rejection of the petition.
12
14. Heard the learned counsel appearing for the petitioner and Sri. Mahesh Shetty, learned High Court Government Pleader appearing for the respondent - State.
15. The State has filed a memo dated 17.08.2020 producing the acknowledgment for having served notice on the mother of the deceased / petitioner in SLP (Crl.) No.9561/2019. However, the said Parvathi who is the mother of the deceased has not chosen to come before this Court. At the outset it is to be noted that the order passed by this Court in Crl.P.2627/2019 had been set aside by the Apex Court on 20.01.2020. The petitioner is stated to have surrendered before the trial Court on 07.02.2020 and then filed a petition seeking to be enlarged on bail on 26.02.2020 before the Sessions Judge which is after one month 6 days (36 days) after passing of the order by the Apex Court.
16. The question is as to whether the petition filed by the petitioner deserves consideration in light of the observations of the Supreme Court while disposing of Criminal Appeal No.133/2020 (SLP (Crl.)No.9561/2019) 13 while cancelling bail granted to the petitioner. It also needs to be seen as to whether there are any change in circumstances or as to whether non-consideration by the Apex Court of enlargement of accused No.8 on bail as per the order passed in Crl.P. No. 7077/2019 on 02.12.2019 as asserted would permit fresh consideration.
17. The contention of the learned counsel for the petitioner that there is no bar for filing successive bail applications, is no doubt one to be accepted and there is no dispute regarding said position. However, it is settled law that while filing the successive bail application, there has to be some change in circumstances which would permit reconsideration of the matter. The case as made out in the present matter is that accused No.8 has been enlarged on bail by order dated 02.12.2019 and that aspect has not been taken note of by the Apex Court and hence, it cannot be said that the Apex Court has considered the release of accused No. 8 keeping it open for the petitioner to canvass the said circumstance warranting fresh consideration of the matter. At the outset, it is to be noted 14 that the petition has been filed before the Sessions Court within 36 days after passing of the order by the Apex Court. The Apex Court had categorically held that the petitioner was not entitled for bail and had observed that this Court has not considered the aspect of conspiracy and the role of the petitioner and that the antecedents of petitioner herein and hence, has recorded that no case was made out for grant of bail. Once the Apex Court while exercising the appellate power under Article 136 of the Constitution of India passes an order, subsequent in point of time to the order releasing accused No.8, it is deemed that all factors have been taken into consideration. Even otherwise, the contention that the release of accused No.8, if was specifically considered, the Apex Court would have come to a different final conclusion is not an aspect that could be considered by this Court when in the hierarchy of courts the order of this Court is subject to proceedings under Article 136 of the Constitution of India. Judicial propriety at the least cannot permit going beyond the order of the Apex Court which has set aside the order of this Court.
15
18. The Apex Court in the case of KALYAN CHANDRA SARKAR (supra) has observed as follows:
"19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been convassed earlier would not be permitted to be re- agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
20. The decisions given by a superior forum, undoubtedly, are binding on the subordinate fora on the same issue even in bail 16 matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier including the Apex Court of the country."
19. The contention that successive bail application could be filed is to be construed to be a qualified one as the Apex Court in the case of KALYAN CHANDRA SARKAR (supra) has clearly observed that once the application for enlargement of bail is rejected, filing of 17 successive/subsequent application for grant of bail would be permissible only in change of fact situations or in the circumstances as pointed out by the Apex Court.
20. Even otherwise, as rightly pointed out by the learned High Court Government Pleader, release of accused No.8 on bail was on the basis of specific observations at para 7 of the order passed in Criminal Petition No.7077/2019 which is self explanatory, reads as follows:
"Considering the above said circumstances, when at the initial stage, the participation of the petitioner has not been stated even sitting with some more persons. But specifically sitting with the other accused persons and assaulted the deceased is not forthcoming. The participation and overt-acts of this petitioner, common intention or common object has to be established during the course of full-fledged trial. In the above said facts and circumstances of the case and also considering the nature of allegations and the role assigned to the petitioner, in my opinion the petitioner is entitled to be enlarged on bail."18
21. The case as made out by the prosecution as against the petitioner herein is one of conspiracy which is different as regards the case made out as against accused No.8 who was present at the spot of incident.
22. In the present case as noticed supra, the circumstance of releasing accused No.8 on bail would by itself not warrant reconsideration, in light of the limited scope of consideration of a successive bail petition. Even otherwise, observing at the cost of repetition that it would be highly inappropriate to go beyond the findings of the Apex Court, moreso as the passing of the order in Crl.P.No.7077/2019 as regards enlarging accused No.8 on bail is an event prior to passing of the order by the Apex Court. Taking note that the petitioner is a sitting member of Zilla Panchayat and also considering that C.W.2 - wife of informant is the witness and also that the prosecution case rests heavily on the evidence of other witnesses and C.Ws. 2 to 9 who were eye witnesses who could be prevailed upon 19 at the instance of accused No.9, it is not a fit case to consider the application.
23. Accordingly, the petition is rejected.
Sd/-
JUDGE VP/VGR