Karnataka High Court
Nagaraj S/O Sambaji Kadam vs State Of Karnataka on 13 January, 2021
Author: K.Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13th DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.101231/2019
BETWEEN:
Nagaraj, S/o Sambaji Kadam
Age 21 years, Occ: mason
R/R Haveripet, Kurubar Oni, Dharwad.
.. Petitioner
(By Sri. L.S. Sullad, Advocate)
AND:
1. State of Karnataka
Sub Urban P.S. Dharwad,
Represented by SPP
High Court of Karnataka
Bench Dharwad.
2. Manjunath, S/o Yallappa kadam
Age 36, Occ: Agriculture
R/R.Kurubar Oni, Haveripet, Dharwad.
3. Basavaraj, s/o Yallappa Kadam,
Age 45, Occ: Agriculture
R/R.Kurubar Oni, Haveripet, Dharwad.
.. Respondents
(By Sri.Ramesh B. Chigari, HCGP for respondent No.1.
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Sri. K.M. Shiralli, Adv. For respondent Nos.2 and 3)
This criminal petition is filed under Section 439(2) of Cr.P.C.
Seeking to cancel the bail granted to respondent Nos.2 and 3 vide
order dated 16.05.2019 in S.C. No.134/2017 and set aside the bail
order passed by the lower court in favour of respondent Nos.2 and
3 and be committed to custody pending the decision of the case for
the offences punishable under Section 143, 147, 148, 324, 109,
504, 506, 337 read with Section 149 of IPC.
This Petition having been heard and reserved for judgment on
06.01.2021 and coming on for pronouncement through Physical
Hearing/Video Conferencing Hearing this day, the Court made the
following:
ORDER
The petitioner/complainant filed this petition under Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.' for brevity) seeking cancellation of the bail granted to respondent Nos. 2 and 3/accused Nos.1 and 2 by the learned IV Additional District and Sessions Judge, Dharwad (hereinafter referred to as the 'trial Court' for brevity) in S.C. No.134/2017 dated 16.05.019.
2. The rank of the parties before the trial Court is retained for the purpose of convenience.
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3. Heard the arguments of Sri. L.S. Sullad, learned counsel for the petitioner/complainant, Sri. Ramesh B. Chigari, learned High Court Government Pleader for respondent No.1-State and Sri. K.M. Shiralli, learned counsel appearing for respondent Nos.2 and 3/accused Nos.1 and 2.
4. The case of the petitioner, who is the complainant before the Dharwad Sub-urban Police is that, he filed a complaint alleging that the accused persons were found in an unlawful assembly with other accused persons and assaulted his grand mother-Gangamma when she questioned accused No.1 why he dashed his motorbike to Mahadeva and being enraged over it, accused No.1-Manjunath secured accused no.2 and also accused no.3 to the house of the complainant. They threatened to kill Gangamma and when Gangamma, the complainant and his brother Sachin came out of the house, accused No.1 assaulted Gangamma on her head with an axe 2 to 3 times and when the complainant and his brother Sachin and Ratnavva went to rescue of Gangamma, the accused assaulted the complainant and is brother Sachin with axe and attempted to cause the murder. Hence, a case was 4 registered in Crime No.332/2016 for the offence punishable under Sections 143, 147, 148, 307, 326, 324, 504 and 506 read with Section 149 of IPC. Subsequent to registration of the case, the said Gangamma succumbed to the injuries, hence, Section 307 of IPC was converted into 302 of IPC. The accused persons were arrested by the police and remanded to judicial custody. The accused moved bail petition before the learned Sessions Judge which came to be rejected on 02.05.2017. Subsequently, they approached this Court for grant of bail by filing criminal petitions which also came to be dismissed. After filing of the charge sheet, again, the petitioners approached the trial Court by filing a petition, which came to be dismissed. The petitioners again approached this Court by filing petitions under Section 439 of Cr.P.C., which also again came to be dismissed on the ground that prima facie is made out against accused Nos.1 and 2 for having committed the murder of Gangamma and for assaulting the complainant and one Sachin. Thereafter, trial commenced and four witnesses have been examined by the prosecution. Again the petitioners moved bail petition under Section 439 of Cr.P.C. which came to be allowed by the trial Court vide order dated 16.05.2019. Hence, the 5 complainant is before this Court seeking cancellation of bail granted to respondent Nos.2 and 3.
5. Sri. L.S. Sullad, learned counsel appearing for the petitioner/complainant contended that the trial Court has not properly considered the facts of the case and ignoring the dismissal of the bail petition by the Sessions Court as well as the High Court, it has given reason by relying upon the judgment of the Hon'ble Supreme Court, which is not correct. There is no discretionary power vested with the trial Court once the Sessions Court rejects the bail petition. In support of his arguments, learned counsel for the petitioner has relied upon the following judgments of the Hon'ble Supreme Court as well as this Court:
a. In the case of Virupakshappa Gouda and Ors. V. the State of Karnataka and Ors. reported in AIR 2017 SC 1685;
b. In State and Ors. v. Amarmani Tripathi and Ors. reported in AIR 2005 SC 3490;
c. In Rajesh Ranjan Yadav v. CBI through its Director reported in AIR 2007 SC 451; and d. In Kalyan Chandra Sarkar and Ors. v. Rajesh Ranjan and Ors. reported in AIR 2005 SC 921.6
Hence, prayed for setting aside the order of grant of bail by cancelling the bail order passed by the trial Court.
6. Per contra, Sri. K.M.Shiralli, learned counsel appearing for respondent Nos.2 and 3/accused Nos.1 and 2 supported the impugned order passed by the trial Court and contended that there is no error committed by the trial Court in granting bail to accused Nos.1 and 2. There is no bar under Section 439 of the Cr.P.C. for filing any number of successive bail petitions and discretionary power is vested with the trial Court for granting bail. He further contended that, since the counter case had not reached the stage for coducting trial due to non-appointment of the Public Prosecutor, the trial Court has rightly held that the trial is likely to be held up and therefore, the trial Court was justified in exercising the discretionary power for granting bail. Even otherwise, the petitioner in para 27 of the petition has stated that, the complainant apprehends the accused may likely to threaten the witnesses but that apprehension is an illusory one since, till date, there is no complaint against the accused persons of threatening the witnesses. Therefore, that apprehension cannot be considered 7 for cancellation of bail. Learned counsel further contended that the trial Court has granted bail to the respondent Nos.2 and 3 in May 2019 and till date, the prosecution has not concluded the recording of the evidence. This clearly shows that, the trial Court was of the view that there will be delay in concluding the trial and therefore granted bail, which is correct. There is inordinate delay in disposing of the case before the trial Court. The reason assigned by the trial Court is a valid reason. Even now, trial has not yet commenced. Respondent Nos.2 and 3 have neither violated any of the conditions imposed nor have threatened the witnesses or absconding from the case. Therefore, the learned counsel contended that the decisions relied upon by the learned counsel for the petitioner are not applicable to the case on hand. Hence, prayed for dismissing the petition.
7. Sri. Ramesh B. Chigari, learned High Court Government Pleader appearing for respondent No.1-State supported the arguments addressed by the learned counsel appearing for the petitioner and submitted that it is an admitted fact that the State 8 has not preferred any appeal or revision against the impugned order.
8. Upon hearing the arguments and on perusal of the records, the points that arise for my consideration are:
i. Whether the trial Court has no discretionary power under Section 439 of Cr.P.C. for granting bail to respondent Nos.2 and 3/accused Nos.1 and 2? And ii. Whether the petitioner has made out a ground for cancellation of bail granted by the trial Court to respondent Nos.2 and 3/accused Nos.1 and 2?
9. On perusal of the records, it goes to show that on the complaint filed by the petitioner, the police have registered a case against the accused persons in Crime No.332/2016 on 30.12.2016 for the offence punishable under Sections 143, 147, 148, 324, 326, 504, 506 and 337 read with Section 149 of IPC. He has alleged in the complaint that his cousin namely Mahadeva went for bringing sugar and while coming back, on the road, accused No.1 caused injury to Mahadeva by his bike. The said Mahadeva went to house and informed his grandmother-Gangamma-the deceased. Then Gagamma went to the house of the accused and questioned why he caused injury to Mahadeva by riding the motorcycle. At that time, 9 accused Nos.1 and 2 said to have assaulted Gangamma with sickle and stick. The other accused also joined accused Nos.1 and 2 and they also assaulted the complainant and his brother Sachin. The injured was shifted to the hospital and a complaint was filed. Subsequently said Gangamma succumbed to the injuries. Therefore, the offence was converted into Section 302 of IPC.
10. It is not in dispute that accused Nos.1 and 2 and other accused were arrested by the police and this Court has granted bail to accused Nos.4 to 6 in Criminal Petition No.100717/2017 disposed of on 10.04.2017 and the petitioner/complainant has not chosen to file any application for cancellation of their bail.
11. The grievance of the petitioner is that the trial Court has rejected the bail petition of accused Nos.1 and 2 in February 2018 and later passed the impugned order by granting bail on 16.05.2019. His further grievance is that the High Court has rejected the bail petition of accused Nos.1 and 2, therefore, the trial Court has no power to grant bail.
12. It is not in dispute that during the crime stage, the learned Principal Sessions Judge, Dharwad, rejected the bail 10 petition in Crl.Misc.No.286/2017 holding that prima facie case was made out against them. It is also not in dispute that accused No.1 filed bail petition before this Court in Criminal Petition No.101312/2017 which came to be dismissed on 09.08.2017. Accused No.2 also approached this Court seeking bail in Criminal Petition No.101051/2017 which also came to be dismissed on 14.06.2017 holding that there is prima facie case made out for having committed the offence by the accused person. It is also not in dispute that again accused No.1 and 2, after suffering an adverse order before the same Judge, i.e. trial Court on 06.02.2018, after committal of the case, have approached this Court in Criminal Petition No.101337/2018 which also came to be dismissed on 22.11.2018 on the ground that there is no changed circumstances to grant bail. Subsequently, after rejection of the bail petition by the trial Court in February 2018 and on a petition, rejection of the same by the Co-ordinate Bench of this Court in November 2018, it s not in dispute that, the trial has been commenced after framing of charges. During the pendency of the trial, in May 2019, accused Nos.1 and 2 again moved bail petition before the learned trial Judge under Section 439 of Cr.P.C. seeking 11 bail on the ground that since the case and the counter claim wherein the petitioner herein and the injured are the accused in SC No.115/2018 wherein Special Public Prosecutor was not appointed for conducting trial and there was delay in disposing of the main case i.e. S.C. No.134/2012 wherein already 4 witnesses have been examined, it would take much more time for concluding the trial in the counter case . The accused are in judicial custody since from their arrest i.e. for more than two years. The trial Court relying upon the judgment of the Hon'ble Apex Court in the case of Babba v. State of Maharashtra, reported in 2005 (11) SC 569, in the case of Vivek Kumar v. State of Uttarpradesh reported in (2000) 9 SCC 443 and in the case of Mahesh Kumar Bhawsinghka v. State of Delhi reported in (2000) 9 SCC 383 wherein it is held that there is a delay in the trial, bail should be granted to the accused and considering the dictum laid down and also the changed circumstances urged by accused Nos.1 and 2, as the trial in the counter case is held up due to non-appointment of the public prosecutor in the counter case, the trial Court has exercised the discretionary power and granted bail.
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13. Admittedly, the impugned order by the trial Court was passed on 16.05.2019. It is also an undisputed fact that the trial was commenced in SC No.134/2017 and four witnesses have been examined by the prosecution. It is also not in dispute that the counter case i.e. SC No.115/2018 was also taken up by the same Court for conducting the trial but the trial Court was not able to proceed with the conducting of the trial due to non-appointment of the public prosecutor.
14. It is well settled by the Hon'ble Apex Court in the case of Nathi Lal vs. State of U.P. and in catena of decisions has held that both the case and the counter case should be tried by the same Court and the judgment should be delivered on the same day and this Court in the case of State of Karnataka v Hosakeri Ningappa reported in LAWS(Kar) 2011-12-30 has held that the trial Court after recording the evidence in the main case, it should hear the arguments and must reserve for judgment and thereafter proceed to hear the counter case and after recording of the evidence and hearing the arguments, should dispose of both the cases simultaneously.
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15. It is well settled principle that the case and counter case must be tried by the same Judge as per dictum of the Hon'ble Apex Court as well as this Court. Admittedly, recording of evidence in the main case is already commenced and four witnesses have been examined. As already stated above, after 16.05.2019, though more than 1½ year has passed, the trial is not completed, except examining one witness, the trial is still pending. It goes to show that the opinion of the trial Court holding that trial would be delayed is correct and there is no error in holding that there would be delay in conducting the trial, as it is not in dispute that in the counter case, the public prosecution has not been appointed. Therefore, the trial Court has rightly given the finding that the appointment of Special Public Prosecutor in the Counter case would cause delay in disposing of the main case. As well as the counter case together in order to dispose both the matter simultaneously.
16. Though the learned counsel for the petitioner has relied upon Virupakshappa Gouda's case (supra) wherein the Hon'ble Apex Court cancelled the bail wherein in the said case, the accused persons attacked the deceased with deadly weapons and caused 14 the murder and further the Hon'ble Apex Court has also relied upon para 9 of the judgment in the case of Prasanta kumar Sarkar v. Ashis Chatterjee and Anr. reported in (2010) 14 SC 496 wherein certain guidelines were laid down while considering the application for bail which is as under:
" 9. .... Among other circumstances, the factors which are to be borne in mind while considering an application for bail are:
(i) Whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence.
(ii) Nature and gravity of the accusation;
(iii) Severity of the punishment in the event of conviction;
(iv) Danger of the accused absconding or fleeing, if released on bail
(v) Character, behavior, means, position and standing of the accused;
(vi) Likelihood of the offence being repeated;
(vii) Reasonable apprehension of the witnesses being influenced; and
(viii) Danger, of course, of justice being thwarted by grant of bail."
17. From the afore said judgment is clear that while considering the bail petition, the Court shall take into consideration the gravity of the offence; the punishment prescribed; the 15 apprehension of committing similar offence; influencing the witnesses and absconding/fleeing from justice. In Amarmani Tripathi's case (supra), wherein the bail granted by the High Court has been cancelled by the Hon'ble Apex Court. In Rajesh Ranjan Yadav's case (supra), it is held that the bail application once rejected by the High Court, again granting bail only on the ground that the accused has undergone jail for a period of three years is not a ground to grant bail.
18. There is no second thought in respect of the principles laid down by the Hon'ble supreme Court in the above said judgments. It is well settled that the provisions of Section 439 of Cr.P.C. is an independent provision and both the Sessions Court as well as the High Court have concurrent powers to consider the bail petition independently depending upon the facts and circumstances of each case. In the judgment reported in 2014 Cr.L.J. 2245 in the case of Sundeep Kumar Bafna v. State of Maharashtra and another the Hon'ble Apex Court has held that powers of the Sessions Court or High Court to grant, no way curtailed by Code, but regimes regulating powers of Magistrate and that of Sessions Court and 16 High Court are drastically dissimilar. At para 26 of its judgment it is held that 'The Sessions Court as well as the High Court, both, of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/appellant had shown sufficient reason or grounds for being enlarged on bail.' In Mahesh Kumar Bhawsingka's case (supra) the Honble Apex Court has held that, ' the accused is languishing in jail for a long time, trial Court directed to complete the trial within three months else the accused shall be released on bail provided that the delay in conducting trial is not attributable to the accused.'
19. The Legislature has also amended the Cr.P.C. and inserted Section 436-A to the Code by Act 25 of 2005, Section 436(A) with effect from 23.06.2006 that maximum period for which an undertrial prisoner can be detained and if the accused undergone the detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties. Earlier there was no such provision 17 or right available to the accused for getting bail under Sections 437 and 439 of Cr.P.C. Looking to the facts of the case, though learned counsel for the petitioner not argued on the facts and merits of the case, but, on fact, it reveals that, on the date of the incident, accused No.1 drove the vehicle and caused injuries to Mahadeva which amounts to a road traffic accident and the said Mahadev complained to the deceased, who is his grandmother, who in turn went to the house of the accused and question the accused why he caused injury while riding the motorcycle. At that time, the quarrel took place and the accused is said to have assaulted the deceased with a wooden club on her head and caused injuries, who was aged about more than 80 years. Then the police initially registered a case only for the offence punishable under Sections 307 and 326 of IPC for causing grievous injuries and attempt to commit murder but subsequently as the said Gangamma succumbed to the injuries, later the offence converted into Section 302 of IPC. However, looking to the facts , even on merits, it cannot be inferred that the accused had pre-planned or with an intention to cause murder, went to the house of the victim and assaulted and caused death but on the other hand, the deceased herself picked up quarrel with the 18 accused which might not attract Section 302 of IPC which is punishable with death or imprisonment for life. Such being the case, when the accused is already in custody for more than 3 years and non conducting the trial due to non-appointment of the public prosecution in the counter case which caused delay in disposing of both the case and the counter case, the trial Court considered the bail petition and granted bail.
20. Even on perusal of the records and the provisions of Section 439 of Cr.P.C as well the power of the learned Sessions Judge under Chapter XVIII of the Code vested with the Sessions Judge for conducting trial and the Sessions Judge is the master of its Court and he has to follow the procedures mentioned in the Code while conducting the trial by following the procedures under Section 309 of Cr.P.C. and Section 439 granting of bail is discretionary power vested with the Sessions Judge as well as High Court, considering the facts and circumstances of the case; the gravity of the offence and the apprehension that accused may commit similar offence or threaten the prosecution witnesses, the Sessions court may reject the bail. However, the apprehension mentioned by the 19 petitioner at para 27 of the petition that the accused is likely to threaten the complainant and the family members and tamper the witnesses, is an illusory one for the reason that even after 1½ years there is no complaint against the respondent Nos.2 and 3 that they have threatened the complainant or tried to tamper the witnesses nor they have violated any of the bail conditions. Already part of the evidence is recorded by the trial Court. The Honble Apex Court held in the case of Aslam Babalal Desai v. State of Maharashtra reported in Air 1993 SC 1 has elaborately considered the grounds for granting bal and cancellation of bail at paragraphs 20 and 21 which are as under:
" 20. A three-member Bench of this Court State (Delhi Administration) b. Sanjay Gandhi made the following elemental distinction in defining the nature of exercise while canceling bail:
Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in an non-bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large by permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.
21. The view of this Court ever since has been that when a decision of bail already made on merit, after due deliberation, is required to be reviewed on prayer for 20 cancellation of bail, it would require the exercise to be undertaken with the necessary care and circumspection. Sanjay Gandhi's case arose in the backdrop of Section 439(2) of the Code whereunder the High Court or Court of Sessions can direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power of High Court or Court of Sessions to cancel bail is exercisable vis-à-vis an order passed by the High Court or the Court of Sessions under sub-section (1) of Section 439, as the case may be, as also to an order of bail passed by a Court other than the High Court or the Court of Sessions under sub-sections (1) and (2) of Section 437 of the Code. Bail orders under the aforesaid provisions by the very nature are decisions on merit and if a review is attempted a strong case has to be made out so as to secure cancellation of bail. Hence, the apparent distinction in the approach of the Court while granting bail and cancelling bail. This field is covered entirely by judge- made law."
In the case of Dolat Ram and others v. State of Haryana reported in (1995) 1 SCC 349, the Hon'ble Supreme Court at paragraph 4 has held as under:
"4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession ranted to the accused in many manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances 21 have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court, it appears to us overlooked the distinction of the factors relevant for rejection bail in a non- bailable case in the first instance and the cancellation of bail already granted."
In view of the aforesaid judgment of the Hon'ble Apex Court, it is clear that without any cogent reasons assigned by the petitioner/complainant, the bail cannot be cancelled once it was granted.
21. As already stated above, the deceased was aged more than 80 years and due to assault, she sustained injuries and succumbed to the injures and the injuries sustained by the complainant are also not so serous one. Such being the case, I do not find any error or illegality committed by the trial Court while exercising power under Section 439 of Cr.P.C. and granting bail. Further for more than three years, the respondents 1 and 2 are in jail and the Hon'ble Apex Court in Babba's case (supra), in Mahesh's case (supra) and in Vivek's case (supra), it has held that bail should be granted to the accused persons, if they are languishing in jail for long time without commencement of trial. 22
22. Admittedly, in the instant case, though Sri.Sullad, learned counsel for the petitioner, contended that the accused languishing in jail cannot be considered as a ground for granting the bail.
23. The trial Court has considered and given reason that accused were in jail from 01.01.2017 nearly for a period of 2½ years at the time of granting bail by the trial Court on the ground that the trial is likely to be held up and from the date of passing the order of grant of bail on 16.05.2019 to till date, the prosecution is not able to conclude the trial by examining its witnesses even after one year eight months which goes to show that the trial is held up due to various reasons may be, transfer of judges, keeping the Court vacant and non-appearance of witnesses and also lockdown due to COVID-19 pandemic. Therefore, I do not find any error committed by the trial Court or any perverse reasons are assigned while granting bail to accused Nos.1 and 2. The incident took place in a spur of moment when the deceased herself went and picked up quarrel with the accused and that apart there is no violation of any 23 of the conditions of the bail by accused Nos.1 and 2 in order to cancel the bail.
24. Therefore, considering all these aspects, I hold that the petitioner has not made out any ground to cancel the bail granted by the trial Court which calls for exercising of power under Section 439(2) of Cr.P.C. Accordingly, I proceed to pass the following order:
The criminal petition filed by the petitioner/complainant under Section 439(2) is hereby dismissed.
However, the trial Court is directed to dispose of, both, the case and the counter case without causing any further delay by following the guidelines laid down by the Hon'ble Apex Court in Nathi Lal v. State of U.P. reported in 1990 SCC (Crl) 638.
Sd/-
JUDGE kmv