Karnataka High Court
Shri. Kannappa Yallappa Nayak vs The State Of Karnataka on 21 September, 2021
Equivalent citations: AIRONLINE 2021 KAR 2990
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 21 S T DAY OF SEPT EMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE S HIVASHANKAR AMARANNAVAR
CRL.P.NO.101666/ 2021
BETWEEN:
1. SHRI. KANNAPPA YALLAPPA NAYAK
AGE. 29 YEARS, OCC. PRIVATE SERVICE,
KAMANAGALLI, R/O. MUTYANATTI,
TQ. AND DIST. BELAGAVI.
2. YALLAPPA YALLAPPA NAYAK
AGE:26 YEARS, OCC:PRIVATE SERVICE,
R/O. MUTYANATTI,
TQ. AND DIST. BELAAVI.
...PETITIONERS
(BY SRI.: VITTHAL S. TELI, ADV.)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT. DHARWAD
THROUGH KAKATI POLICE STATION,
KAKATI, TAL. AND DIST. BELAGAVI.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO GRANT REGULAR BAIL AND PETITIONERS/ACCUSED
NO.1 AND 2 MAY KINDLY BE ENLARGED ON BAIL ARREST IN
KAKATI P.S. CR.NO.134/2019 (SC NO.387/2019) PENDING ON
THE FILE OF XI ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI FOR OFFENCES U/S 302, 323, 504, 506 R/W SECTION
34 OF IPC.
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BAIL APPLICATION FILED BY THE PETITIONERS/ACCUSED
NO.1 AND 2 U/S 439 OF CR.P.C., IN CRL.MISC.NO.579/2021
BEFORE THE XI ADDITIONAL SESSIONS JUDGE, BELAGAVI, HAS
BEEN REJECTED.
THIS CRIMINAL PETITION IS COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by accused Nos.1 and 2 under Section 439 of Cr.P.C. seeking to grant regular bail and to enlarge on bail of their arrest in Kakati P.S. Crime No.134/2019 (SC No.387/2019) pending on the file of XI Additional District and Sessions Judge, Belgaum registered for the offence under Sections 302, 323, 504, 506 r/w Section 34 of IPC.
2. The case of the prosecution is that one Sri.Parashuram Kannappa Nayak R/o Mutyanatti village, Taluk and district Belagavi filed a complaint with Kakati Police Station alleging that 3 on 27.06.2019 himself and his younger brother deceased Sidrai were returning from their field. It is further stated that himself and one Halappa stopped for urination and at that time his younger brother Sidrai was going to his house and at that time accused No.1-Kannappa Yallappa Nayak who is petitioner No.1 herein and accused No.2 Yallappa Yallappa Naik who his petitioner No.2 herein and accused Nos.3 and 4 came there with sickle and caught hold of Sidrai abused him in filthy language and said "What will happen if cattle graze in mango plantation". Accused No.1 assaulted with the sickle on Sidrai's neck and he fell down in drainage, then accused No.2 also assaulted with sickle on his back and hand. Accused No.3 and 4 also assaulted Sidrai. After hearing the sound, other people came and pacified them and all the 4 accused threatened them. At that time it was 10 'O' clock in the night. Sidrai died on the spot. Accused No.3 used to take her cattle for grazing in the mango garden belonging to them and Sidrai was upset with this and had quarreled in this regard. Due to this reason they all assaulted and murdered him. On the complaint, case has been registered in Kakati Police Station in Crime No.134/2019. Petitioners were arrested on 01.07.2019. The Police after completing the investigation have filed charge sheet for the offence punishable under Sections 302, 323, 504, 506 R/W Section 34 of IPC. The case is now pending for trial in SC.No.387/2019 on the file of XI Addl. District and Sessions Judge, Belagavi. The petitioners had earlier approached this court in Crl.P.No.101001/2020 seeking bail and the same came to be rejected by order dated 5 08.09.2020. Thereafter, the petitioners filed Crl.Misc.No.579/2021 seeking bail and the same came to be rejected by XI Additional Sessions Judge, Belagavi by order dated 14.06.2021. Therefore, the petitioners/accused Nos.1 and 2 are before this court seeking bail.
3. Heard the learned counsel for the petitioners/accused Nos.1 and 2 and learned HCGP for respondent/State.
4. Learned counsel for the petitioners submitted that the incident has taken place at 10.00 p.m. on 27.06.2019 and the complaint came to be registered on the same day on 11.00 p.m. The contents of the complaint are typed written and nowhere it is mentioned where it is typed. It is his further submission that after rejection of earlier bail petition by this court, one year has been lapsed and still the case is at 6 the stage of framing of charge. He placed reliance on the decision of Hon'ble Apex Court in the case of Sanjaya Chandra V/s. CBI , reported in (2012) 1 SCC 40, wherein it is observed thus:
"25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, 7 then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.
26. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan-(2005) 2 SCC 42, observed that "18......Under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of 8 prima facie case, there is need to release such accused on bail, where fact situations require it to do so."
27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
5. He has placed reliance on another decision of Hon'ble Apex Court in the case of Jayendra Saraswathi Swamigal V/s. State of Tamil Nadu, reported in (2012) 1 SCC 65, wherein it is held as under :
"15. Shri Tulsi has lastly submitted that the prohibition contained in Section 437(1)(i) Cr.P.C. that the class of persons mentioned therein shall not be released on bail, if there appears to be a reasonable 9 ground for believing that such person is guilty of an offence punishable with death or imprisonment for life, is also applicable to the Courts entertaining a bail petition under Section 439 Cr.P.C. In support of this submission, strong reliance has been placed on a recent decision of this Court in Kalyan Chandra Sarkar v.Rajesh Ranjan @ Pappu Yadav & Anr.2004(7) SCC
528. The considerations which normally weigh with the Court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 and basically there are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to 10 the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. The case of Kalyan Chandra Sarkar (supra) was decided on its own peculiar facts where the accused had made 7 applications for bail before the High Court, all of which were rejected except the 5 t h one which order was also set aside in appeal before this Court. The 8 t h bail application of the accused was granted by the High Court which order was subject matter of challenge before this Court. The observations made therein cannot have general application so as to apply in every case including the 11 present one wherein the Court is hearing the matter for the first time."
With this he prayed to allow the petition.
6. Per contra, learned HCGP has contended that due to the present situation of Covid-2019 there is limited functioning of the court and due to which the case is at the stage of framing of charge. It is his further submission that this court in the earlier petition has considered the merits of the case and rejected the bail petition of the petitioners. It is his further submission that the decisions relied upon by the counsel for the petitioners are not applicable to the case on hand as the offence alleged in the decision relied in Sanjay Chandra (Supra) are not punishable with death or imprisonment for life.
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7. It is his further submission that in the case of Jayendra Saraswathi Swamigal (Supra) the petitioner had approached the Hon'ble Apex Court seeking bail of 8 t h time and his case came to be considered by the Hon'ble Apex Court for grant of bail. It is his further submission that on perusal of the order sheet of the Sessions court, the case came to be adjourned on the ground of Covid-2019. He further submits that the petitioners have not made out any new grounds for considering their successive bail petition. With this he prayed to reject the petition.
8. Having regard to the submissions made by the learned counsel for the petitioners and learned HCGP, this court has gone through the records. This court in the previous petition of these petitioners has considered their 13 involvement, statement of eye witnesses, nature and manner of assault, place of the assault injury sustained by the deceased, cause for death and the offence alleged is punishable with death or imprisonment for life, has rejected the bail petition of the petitioners. This is successive bail petition by the petitioners. The decision relied upon by the petitioners in Sanjay Chandra (supra) is not applicable to the case on hand since the offence alleged in the said decision are not punishable with death or imprisonment for life. In the case on hand, the offence alleged is under Section 302 of IPC which is punishable with death or imprisonment for life. Another decision relied upon by the learned counsel for the petitioners in the case of Jayendra Saraswathi Swamigal (supra) the bail application of the accused came to be 14 considered when the application is made of 8 t h time. In the present case, this a first successive bail petition by the petitioners so far as the contention of the petitioners with regard to no progress in the case after lapse of two years of arrest of the petitioners is concerned, due to present circumstances of Covid-2019 there is limited functioning of the court, which might have affected the progress of the case.
9. The offence alleged against the petitioners is Section 302 of IPC which is punishable with death or imprisonment for life. The petitioners have not made out any grounds to consider the successive bail petition. Hence, petition is dismissed.
Sd/-
JUDGE MNS/