Karnataka High Court
Sri Lathesh @ Lathesh Poojary vs The State By Hiriyadka Police Station on 11 September, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.3708/2020
BETWEEN:
Sri. Lathesh @ Lathesh Poojary
S/o. Sankarappa G. Anchan,
Aged about 33 years,
Occupation: Bus conductor,
R/at Sharada Nilaa, Hoige Palimaru,
Palimaru Post, Udupi Taluk,
Udupi District-575 126.
...Petitioner
(By Sri. Balakrishna M.R, Advocate)
AND:
The State by Hiriyadka
Police Station,
Udupi District-576 113
Represented by its
State Public Prosecutor,
High Court Building,
Bengaluru-560 001.
...Respondent
(By Sri.M. Divakar Maddur, HCGP).
This Criminal Petition is filed under Section 439 of
Cr.P.C. praying to enlarge the petitioner on bail in
Cr.NO.141/2016 (S.C.No.18/2017) of Hiriyadka Police
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Station, Udupi District, for the offence punishable under
Section 302, 112, 120(B) read with 34 of IPC.
This Criminal Petition coming on for Orders,
'through Video Conference', this day, the Court made
the following:
ORDER
The present petition has been filed by petitioner- accused No.4 under Section 439 of Cr.P.C., to release him on bail in Crime No.141/2016 (S.C.NO.18/2017) pending on the file of Principal Sessions Judge, Udupi District, Udupi for the offence punishable under Sections 302, 112, 120(B) read with Section 34 of IPC.
2. I have heard the learned counsel Sri. Balakrishna M.R for the petitioner - accused No.4 virtually and learned High Court Government Pleader Sri. M. Divakar Maddur for the respondent - State.
3. The genesis of case as contended by the complainant is that on 19.12.2016 at about 01.15 p.m., the complainant received a phone call that his brother- -3- in-law Praveen Kulal has been assaulted by Talwar near Hiriyadka Kotla Katte, immediately, the complainant along with his co-brother Umesh Kulal came to the said place and there, he found the deceased-Praveen Kulal's lying in a pool of blood and there were so many injuries over the body of the deceased and he also found a pistol lying near the body. On enquiry with neighboring people about the incident, he came to know that the deceased came in his car bearing Registration No.KA- 19-MB-1616 and went to Diya Bar, where he met his known people and there was a quarrel between them because of previous enmity, the deceased came out of the bar and tried to escape from the place. The accused persons chased and assaulted him by Talwar, consequently, he fell down and breathed his last. On the basis of the compliant, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that the petitioner - accused No.4 -4- approached this Court in Crl.P.No.3287/2019. This Court while dismissing the petition, directed the trial Court to expedite the trial. Till then, the trial has not been commenced since three years six month. The petitioner - accused No.4 is languishing in jail without any just cause. It is his further submission that already accused Nos.3 and 5 have been granted bail and the petitioner - accused No.4 is having a right to have a speedy trial under Article 21 of Constitution of India. It is his further submission that right of the petitioner - accused has been deprived in holding the trial. It is his further submission that delay in the trial is one of the ground to grant bail. In order to substantiate the said contention, he has relied upon the decision in the case of STATE OF KERALA Vs.RANEEF reported in (2011) 1 SCC 784. It is his further submission that though there is direction issued by this Court, the trial Court has not completed the trial and even it is not possible to complete the trial within short. Under such -5- circumstances, the bail has to be granted to the petitioner - accused. In order to substantiate the said contention, he has relied upon one more decision in the case of BIPIN SHANTILAL PANCHAL VS. STATE OF GUJARAT And ANOTHER reported in AIR 2001 SCC 1158. It is his further submission that he has produced the photographs of the parents of the accused No.4 that they have bed ridden and nobody is there to look after them and on humanitarian grounds, he prays to release accused No.4 on bail. It is his further submission that he is ready to abide by the conditions that may be imposed by this Court and ready to offer sureties. On these grounds, he prays to allow the petition and to release the petitioner - accused No.4 on bail.
5. Per contra learned High Court Government Pleader for respondent - State vehemently argued and submitted that the petitioner - accused No.4 has approached this Court earlier. This Court after -6- considering the merits of the case and the overt act of the petitioner -accused No.4 has rightly dismissed the petition. There are no new grounds made out to revive the bail application. It is his further submission that there are serious overt act alleged against the petitioner
- accused. He who assaulted the deceased with Talwar on his head and the same has been witnessed by the eye witness CW's 2 to 9. They have clearly stated about the involvement of the petitioner - accused No.4 in heinous offence, which is punishable with death or imprisonment for life. It is his further submission that the petitioner -accused No.4 is also involved in one more criminal case No.55/2016 and he is a habitual offender and if he is released on bail, again he may indulge in similar type of criminal activities. On these ground, he prays to dismiss the petition. -7-
6. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records.
7. It is the contention of the learned counsel for the petitioner - accused No.4 that this Court has issued direction to the trial Court to expedite the trial and in spite of the direction issued on 08.08.2019, the trial has not yet been commenced and since three years six months, the petitioner -accused is languishing in jail. It is his further submission that right to speedy trial is a fundamental right of the accused and if there is any delay in trial, the application for the bail has to be considered. In that light, he has relied upon the decision of STATE OF KERALA quoted supra at paragraph No.16 which has been observed as under:-
"16. Now, for disposal of the present application we may state that there is no point in our granting further time to the trial Court to complete the trial. It is for the trial Court to complete is as early as possible. But we would not do anything to deprive the -8- accused in custody of his right to move for bail on account of the delay thus far occasioned. The bail application would be disposed of by the Court concerned on ins own merits. With the above observations we dispose of this application."
8. And he has also relied upon one more decision of Hon'ble Apex Court in the case of Bipin Shantial Panchal quoted supra at paragraph No.8, which has been observed as under:-
"8. In the present case, this Court repeatedly urged for expeditious trial of the case, which some how has not taken place. In the case of Hissainara Khatoon and Ors. V. Home Secretary, State of Bihar, Patna, AIR 1969 SC 1369 their Lordship of the Supreme Court, Justice P.N. Bhagwati (as he then was) and Justice D.A. Desai observed that "it is absolutely essential that persons accused of offences should be speedily tried, so that in case where bail, in proper exercise of discretion, is refused, the accused persons have not to remain in jail longer than is absolutely necessary". It is none of the fault of the accused - petitioner, who is tender age of 19/20 years if the trial is moving snails pace or a particular order passed by this Court has not reached the trial Court. The accused petitioner is not expected to suffer on account of any mistake or delay in the office of this Court. It will serve no useful purpose to keep him -9- for more time in the company of hardened criminals."
9. I have given my thoughtful consideration to the said decision in first decision the Hon'ble Apex Court by taking into consideration the fact of the offence that has been leveled against the respondent under Section 202 of IPC. In that light, delay in trial for only 66 days has been taken into consideration and the petitioner - accused in that case has been released on bail. Even in the second case looking into the factual Matrix of the case on hand that the said ratio has been laid down. I have given my thoughtful consideration. Though it is trite law that right to speedy trial is a fundamental right of the accused and it has to be taken into consideration while considering the bail application. On looking to direction this Court has issued direction to expedite the trial. But how many cases were pending before the said Courts and what is the pressure of the Courts in dealing of cases has to be kept in view while considering the
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expedite trial and apart from that the petitioner - accused No.4 is involved in serious offence, which is punishable with death or imprisonment for life. Even as could be seen from records, it indicates that petitioner - accused No.4, is the person, who assaulted the deceased with Talwar on his head and he has caused the death of the deceased.
10. The said facts and circumstances of the above said decisions are not applicable to the present facts of the case on hand. It is the law laid down by the Hon'ble Apex Court that delay in the trial is not a ground to release the petitioner on bail. It has been held in the case of GOBARBHAI NARANBHAI SINGALA V. STATE OF GUJARAT AND OTHERS reported in (2008) 3 SCC 775 wherein in paragraph Nos. 19, 21, 22 it has been observed as under:-
"19. From a reading of the impugned order it is found that the learned Judge, who incidentally happens to be the same judge who had declined to release the respondent
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on bail earlier, did not advert to any of the reasons given by him declining to release the respondent on bail. There was no change of circumstances. The reasons given by the learned Judge in the impugned order for grant of bail are untenable.
21. The other reason given in the impugned order is that the trial of the case has not progressed begun. We find from the record that between 2.6.2004 and 19.12.2005 the case was listed before the trial Court 31 times and on each date, it had to be adjourned on the ground that one or the other accused was not present. There are 16 accused in the case. It is not clear from the record whether the accused were not brought by the police from the jail or that they were on bail and had not appeared of their own, but the fact remains that the complainants were not in any way instrumental in delaying the trial between 02.06.2004 and 19.12.2005. It was brought to our notice that the only witness who has been examined so far has turned hostile. Trial was stayed by the High Court on 15.2.2007 at the instance of the appellant as Shri. R.R. Trivedi, APP, to whom the case had been assigned for conducting the trial and was allegedly the counsel for the respondent in some other case earlier, continued to appear in the case in spite of the fact that he was replaced by another APP. It just shows that the trial was not progressing smoothly. In any case, the complainant party was in no way responsible for any delay in trial.
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22. The third reason given by the High Court for grant of bail, that the respondent had been in jail for the last more than 2 years, is equally untenable in view of the observations made by this Court in State of U.P. v. Amarmani Tripathi:
"19. ...'14. ... the condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself of coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail".
11. Keeping in view the above said preposition of law as the petitioner - accused No.4 has involved in
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serious offence, which is punishable with death or imprisonment for life, even it is contended by the learned High Court Government Pleader that the petitioner - accused No.4 has also involved in one more criminal case. Under such circumstances, I am of the opinion that the accused - petitioner No.4 has not made out any good ground so as to release him on bail.
12. It is further contended by the learned counsel for the petitioner that the parents are not keeping well and nobody is there to look after them and on humanitarian ground the petitioner - accused No.4 may be released on bail. But it is not a good ground to release the petitioner - accused No.4 on bail. Though it is contended during the course of argument that petitioner - accused No.4 may be released on bail for a limited period. But if the petitioner -accused intends to go and see his parents, under such circumstances, then he can apply for parole before the Jail Authorities and if
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the said application is considered lawful he may be released on parole, under such circumstances, he can visit his parents.
13. However, liberty is given to petitioner - accused No.4 to revive the bail application after the examination of eye witnesses before the trial Court.
With the above observation, the petition is dismissed.
Since the main petition is disposed of, I.A.No's. 1/2020 and 2/2020 do not survive for consideration and same are disposed of.
Sd/-
JUDGE ag