Karnataka High Court
Dr S K Guharoy vs Dr. P. Ramamurthy on 14 January, 2020
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.1202 of 2019
BETWEEN
DR. S.K.GUHAROY,
S/O LATE SRI SUBIMAL,
AGED ABOUT 49 YEARS,
C/O. MEDICARE HOSPITAL,
#66, SULTANPALYA MAIN ROAD,
BANGALORE-560 032.
...PETITIONER
[BY SRI DR.S.K.GUHAROY, (PARTY-IN-PERSON)]
AND
1. DR.P.RAMAMURTHY,
S/O NOT KNOWN,
AGED ABOUT 80 YEARS,
C/O. MEDICASTAR HOSPITAL,
No.17/1, 'A' MUDALIYAR ROAD,
OFF SEPPINGS ROAD,
SHIVAJINAGAR,
BENGALURU-560 001.
2. MS. S.SUNDARI,
AGED ABOUT 29 YEARS,
C/O. MEDICASTAR HOSPITAL,
No.17/1, 'A' MUDALIYAR ROAD,
OFF SEPPINGS ROAD,
SHIVAJINAGAR,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI V.VISHWANATH SHETTY, ADVOCATE FOR R-1 & R-2.)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING TO SET ASIDE THE IMPUGNED ORDER
IN C.C.No.18702/2017 DATED 14.08.2019 BEFORE THE DESK
OF IV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner, party-in- person, being aggrieved by the order dated 14.08.2019 passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru City (hereinafter referred to as the 'Trial Court') in CC No.18702/2017 rejecting the application filed by the petitioner under Section 437(5) of code of criminal procedure (hereinafter referred to as 'Cr.P.C.' for short).
2. Heard learned counsel for the petitioner/complainant appearing as party-in-person and learned counsel for the respondents/accused.
3. The case of the petitioner/complainant is that he filed a complaint against accused Nos.1 and 2 before the XI Additional Chief Metropolitan Magistrate, Bengaluru, and 3 the same was referred to Bharathi Nagar Police Station under Section 156(3) of Cr.P.C. and later, the Police filed the charge sheet for the offences under Section 403, 406 and 407 read with 34 of IPC in CC No.18702/2017 and the matter was taken up for trial by the IV Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter referred to as the 'Trial Court'). The petitioner is the complainant before the Trial Court and later, the Police filed the charge sheet. After registering the case, accused Nos.1 and 2 obtained anticipatory bail under Section 438 of Cr.P.C. before the LXV Additional City Civil and Sessions Judge, Bengaluru, in Crl.Misc.No.6345/2017 on 09.08.2017. Thereafter, accused Nos.1 and 2 appeared before the Trial Court and obtained regular bail. The further case of the complainant is that the Sessions Court while granting anticipatory bail imposed two important conditions that the accused shall not tamper with the witnesses or threaten the witnesses and they shall attend the Trial Court regularly on all dates of hearing. But accused Nos.1 and 2 failed to comply with the bail conditions. They remained 4 absent before the Trial Court for one or the other reasons. Apart from that, the accused also threatened the complainant through their henchmen thereby, the complainant filed a complaint before the Bharthi Nagar Police Station and protection was given to the complainant. The accused are said to have mis-used the bail conditions. Therefore, the complainant chose to file an application before Trial Court under Section 437(5) of Cr.P.C. for cancellation of bail. The Trial Court after obtaining objections from the accused passed the impugned order by dismissing the application filed by the complainant for cancellation of bail, which is under challenge.
4. The petitioner contended that the order under revision suffers from legality. The Trial Court has not appreciated the grounds made out by the petitioner in his application for cancellation of bail. Even though the accused persons remained absent, which is revealed from the order sheet of the Trial Court that on one day accused No.1 remained absent and on another date, accused No.2 5 remained absent and sometime, their advocate used to file exemption application, which was allowed and sometimes NBW was also issued against accused persons, thereafter the same was cancelled and recalled, which clearly goes to show that the respondents/accused have violated the bail condition of the Sessions Court directing the accused to appear before the Trial Court regularly. That apart, the complaint filed by the petitioner against the respondents also goes to show that the accused persons threatened the complainant thereby, there is violation of another condition of the bail. Therefore, this was not considered by the Trial Court and further contended that the Trial Court has considered the age of accused No.1, but not stated anything about accused No.2 while rejecting his application. The Trial Court ought to have considered the allegations made against accused No.2, but that was not done. Therefore, the petitioner prayed for setting aside the order under challenge and remand the matter back to the Trial Court for fresh consideration.
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5. Learned counsel for the respondents countered the arguments and contended that the age of accused No.1 is 80 years. He is a heart patient and had underwent open heart surgery. Therefore, the question of accused No.1 threatening the complainant would not arise. That apart, due to some illness, he was unable to appear before the Trial Court regularly. However, learned counsel for the respondents assured the Court that the accused will appear before the Trial Court and take up the trial. He further contended that accused No.2 is a lady and she is working in a hospital. She being a woman would not have indulged in threatening the complainant. Therefore, the question of canceling bail does not arise. Hence, prayed for dismissal of the revision petition.
6. Upon hearing the arguments of the petitioner, party- in-person and learned counsel for the respondents and on perusal of the records, admittedly, the complainant filed a private complaint before the XI Additional Chief Metropolitan Magistrate, Bengaluru and the same was 7 referred to the Police under Section 156(3) of Cr.P.C. for registering the case and to file report. After the investigation, the Bharathi Nagar Police filed the charge sheet before the IV Additional Chief Metropolitan Magistrate, Bengaluru which is a Special Court for trying the offence under Section 406 and 407 of IPC. Accordingly, the charge sheet came to be filed, which is pending for consideration. It is also an admitted fact that the accused persons approached the Sessions Court for bail by filing an application for anticipatory bail under Section 438 of Cr.P.C. and the Sessions Court granted anticipatory bail imposing certain conditions, which are as follows:
"1. The petitioners shall be enlarged on bail by the respondent Bharathi Nagar Police, in the event of their arrest in C.C.No.18072/2017, on the file of IV ACMM, Bengaluru, for the offences p/u/Sec. 403 and 406 of IPC, on execution of personal bond for Rs.50,000/- each with one surety for the likesum.8
2. The petitioners shall not, directly or indirectly make any inducement, threat or promise to any persons acquainted with the facts, so as to dissuade them from disclosing such facts to the Court or to any police officer.
3. The accused shall attend the trial court regularly, on all dates of hearing."
After obtaining the order, it is seen that the accused persons also appeared before the Trial Court and were released on bail. The order sheet produced by the complainant goes to show that from 11.09.2017 till 17.10.2019 for almost two years and one month, the accused persons appeared before the Trial Court for the first three dates of hearing regularly. Thereafter, totally they have appeared only for nine times and it is also seen that one of the accused remained absent and the advocate filed exemption petition under Section 317 of Cr.P.C., which was allowed and sometimes NBW has been issued against one of the accused. Later, it was recalled by the 9 Trial Court by imposing penalty of Rs.100/- on 12.09.2019 and the matter was continuously posted for hearing on charge. In the meanwhile, the petitioner filed an application for cancellation of bail. The Trial Court in the order under revision has also stated that one of accused remained repeatedly absent and exemption was filed. The appearance of accused No.1 has been exempted and his presence was not necessary. The order also reveals that another case filed by the complainant has nothing to do with this case and the Police have filed the charge sheet in this case and the matter was proceeded with. After taking cognizance, the Trial Court held that it cannot issue any direction in the said case. This was challenged by the petitioner. On perusal of the record, it is seen that the Trial Court has also held that accused No.1 has willfully remained absent and violated the bail conditions. However, there is no reference available against accused No.2 for having rejected the application filed by the petitioner. Be that as it may. The Hon'ble Supreme Court has laid down certain guidelines to be followed in the case 10 of cancellation of bail by the Court and also granting of bail. In the case of Dolat Ram and others vs. 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 the 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 granted to the accused in any 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 have rendered it no 11 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 rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted."
The Hon'ble Supreme Court in the case of Aslam Babalal Desai vs State Of Maharashtra reported in AIR 1993 SC 1, has elaborately considered the grounds for granting bail and cancellation of bail at paragraphs 20 and 21, which are as under:
"20. A three-member Bench of this Court in State (Delhi Administration) v. Sanjay Gandhi made the following elemental distinction in defining the nature of exercise while cancelling 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 12 application in a 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 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 Session can direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power of the High Court or Court of Session to cancel bail is exercisable vis-a-vis an order passed by the High Court or the Court of Session 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 13 Session under Sub-sections (1) & (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."
7. In view of the judgment of the Hon'ble Supreme Court, the Court while granting bail, imposed certain conditions and while canceling the bail the Court has to take much care and there must be strong evidence to show that the accused misused the bail in order to cancel the bail and put them into jail. Now keeping in view the principles laid down by the Hon'ble Supreme Court and coming to the allegations made by the petitioner in his application, it goes to show that one of the accused remained absent before the Court and was not attending the Court. Thereby, he has violated one of the conditions of bail and also the accused threatened the complaint thereby, further violated another bail condition. Of course, 14 the complainant produced the acknowledgement for having lodged complaint against the accused persons. As per Annexure-J, dated 06.01.2018, the substance of the complaint goes to show that the complainant went to the Police Station and filed the complaint stating that the advocate of the respondents scolded and he sought for protection, but the details of the complaint has not been produced before the Court to show what was the offence committed by accused Nos.1 and 2 subsequent to the bail granted to them by the Sessions Court. Mere filing of a complaint by the complainant against accused Nos.1 and 2 itself is not a strong ground for cancellation of the bail. That apart, the main contention is that accused Nos.1 and 2 were not regularly appearing before the Court to frame charges against them and the same stage is continued. Of course, the order sheet shows that the accused persons were sometimes regular and the remaining times, they were not regular, but the stage continued as hearing before charge. It is well settled that, the presence of the accused is not always mandatory and that their presence is 15 always required at the time of answering the charge and at the time of evidence for the purpose of identification of the accused before the Court. Even otherwise, the presence of the accused before the Court can be dispensed with by the Trial Court on the application filed by the parties under Section 317 of Cr.P.C. That apart, the accused No.1 is said to be aged 80 years. He is a senior citizen and accused No.2 is a woman. Such being the case, when there is no strong material produced by the complainant to show that accused Nos.1 and 2 have misused the bail granted by the Trial Court, the question of cancellation of the bail and putting them into jail does not arise. That apart from the allegations made out against the accused for framing charges under Sections 403, 406 and 407 of IPC, the charges cannot be said to be an heinous offence against the State, like murder or rape case which is against the society and if bail is not cancelled, they will be dangerous to the society. Therefore, merely the accused remained absent on the date of hearing due to his ill-health that itself is not a ground or a strong material to show that they 16 have violated the bail conditions. Of course, the presence of the accused is necessary as and when required, but not at all compulsory all the times before the Trial Court. Such being the case, merely the Sessions Court granted bail by imposing certain conditions that is to appear regularly before the Court and the accused remained absent, that itself is not a strong ground to show that bail condition has been misused by the accused persons, in order to cancel the bail and put the accused into the jail as held by the Hon'ble Supreme Court, rejection of bail is different from cancellation of the bail already granted by the Court to the accused, which amounts to liberty granted under Article 21 of the Constitution of India. Therefore, I hold that there is no sufficient ground made out by the complainant to cancel the bail of the accused. Therefore, the order under revision do not suffer from any legality requiring interference by this Court. Hence, I pass the following order:
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The Criminal Revision Petition is dismissed.
However, the Trial Court is directed to proceed with the matter without any delay as accused No.1 is a senior citizen, accused No.2 is a woman and both the respondents shall take up trial without causing any delay.
The Trial Court shall consider the presence of the accused whenever required.
The accused shall appear before the Trial Court for the purpose of answering the charge. Thereafter, the Trial Court shall consider granting exemption to the parties, whenever necessary in accordance with law.
Sd/-
JUDGE mv