Karnataka High Court
Kalu S/O Appaji Bhovi And Anr vs The State Through Devala Ghanagapur on 21 April, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200486/2017
Between:
1. Kalu S/o Appaji Bhovi
Age: 32 years
Occ: Agriculture & Coolie
2. Mahantesh S/o Duryodhan Bhovi
Age: 29 years, Occ: Electrician
All are R/o Village Bandarwad
Tq: Afzalpur, Dist: Kalaburagi
... Petitioners
(By Sri Nandkishore Boob, Advocate)
And:
The State through
Devala Ghanagapur Police Station
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to release the petitioners on bail in Crime
No.138/2015 of Deval Ghanagapur Police Station (Pending
on the file of II Addl. Sessions Judge at Kalaburagi in
S.C.No.52/2016), in view of the reasons as stated above,
which is registered for the offences P/U/Sec. 302 R/W 34 of
IPC.
2
This petition coming on for Orders this day, the Court
made the following:-
ORDER
This petition is filed by the petitioners/accused Nos.1 and 3 under Section 439 of Cr.P.C., seeking regular bail in Crime No.138/2015 of Deval Ghanagapur Police Station (S.C.No.52/2016 pending on the file of II Addl. Sessions Judge, Kalaburagi), registered for the offences punishable under Section 302 r/w Section 34 of IPC.
2. I have heard the learned counsel for the petitioners and the learned Additional State Public Prosecutor appearing for respondent-State.
3. The main grounds urged by the learned counsel for the petitioners are that, petitioners are innocent and they have not committed any offence alleged against them. CWs.2 to 4 are the eyewitnesses to the alleged incident, they have been examined before 3 the District and Sessions Judge as PWs.2 to 4 and they have not supported the case of the prosecution and they have been treated as hostile. It is also contended that the incident took place on 06.10.2015 and from the day of arrest, the petitioners are in judicial custody. It is further contended that the Court below is burdened with so many matters and the case was not heard and decided on day-to-day basis. As such, the trial may take some more time and when the material witnesses have not supported the case of the prosecution, the petitioners are entitled to be released on bail. On these grounds, he prays for allowing the petition.
4. On the contrary, learned Additional State Public Prosecutor appearing for the respondent-State would contend that as per the provisions of Section 309 of Cr.P.C., the Sessions Court to proceed on day-to-day basis. Merely because the material witnesses have not supported the case of the prosecution, that does not 4 mean that the other witnesses are not going to support the case of the prosecution and the accused are going to be acquitted. He would also contend that already earlier bail petitions were came to be dismissed on merits and now the petitioners are taking via media method to get themselves released on bail on one or the other protest. On these grounds, he prays for dismissal of the petition.
5. I have gone through the submissions made by the learned counsel for the petitioners and the learned Addl. State Public Prosecutor appearing for the respondent-State.
6. By going through the charge sheet material and other material produced along with the petition, it indicate that there are eyewitnesses to the alleged incident and the accused persons earlier started quarreling and thereafter they have assaulted the deceased with stone on his head and as a result of the 5 said assault, the deceased died on the spot. When there are eyewitnesses to the alleged incident and there are serious overt-acts against the petitioners, under such circumstances, the petitioners are not entitled to be released on bail. Be that as it may. Even though PWs.2 to 4 who have been examined before the Court below have not supported the case of the prosecution, further more 24 witnesses are to be examined before the Court below and in that there are some eyewitnesses and even the important material witnesses are to be examined. At this juncture, it cannot be hold that there is no material as against the petitioners so as to release them on bail.
7. In view of the above said facts and circumstances, the petition is dismissed. However, by going through the submissions of the learned counsel for the petitioners, it reveals that though trial has been fixed and the witnesses were came to be examined, but the trial Court has not followed the proposition of law 6 laid down in Section 309 of Cr.P.C. and even the direction issued by the Apex Court in the case of Akil alias Javed Vs. State (NCT of delhi), reported in (2013)7 SCC 125, wherein at paragraph No.41 Point 14 it has been observed as under:-
"14. If any Court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his Counsel the Court can adopt any of the measures indicated in the sub-section, i.e., remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the Court). Another option is, when the accused is absent and the witness is present to be examined, the Court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his Counsel to proceed to examine the witnesses present even in his 7 absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case.)"
8. The said judgment of the Apex Court has been circulated to the trial Court, but in spite of that the trial Court has not followed the said guidelines.
9. Keeping in view the above said facts and circumstances, the trial Court is directed to keep in view the direction issued by the Apex Court as stated supra and expedite the case by fixing the case on day- to-day basis.
Petition is disposed of accordingly.
Sd/-
JUDGE LG Ct: RRJ