Karnataka High Court
Sri M V Rudrappa vs State Of Karnataka on 22 July, 2016
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2016
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 4251/2016
C/W.
CRIMINAL PETITION NO. 4325/2016
CRIMINAL PETITION NO. 3834/2016,
CRIMINAL PETITION NO. 4407/2016,
CRIMINAL REVISION PETITION NO. 760/2016,
CRIMINAL REVISION PETITION NO. 806/2016.
IN CRIMINAL PETITION NO. 4251/2016
BETWEEN:
SRI. M. V. RUDRAPPA,
S/O LATE M. V. VEERABADRAPPA,
AGED ABOUT 50 YEARS,
R/O NO. 68/1, WEST PARK ROAD,
17TH CROSS, MALLESHWARAM,
BANGALORE - 560 003. ... PETITIONER
(BY SRI. SANDEEP S PATIL, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY MALLESHWARAM POLICE,
MALLESHWARAM,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
2
BANGALORE - 560 001. ... RESPONDENT
(BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 CR.P.C PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.37/2016 OF
MALLESHWARAM P.S., BANGALORE FOR THE
OFFENCE P/U/S 418, 120B, 420, 201, 381 OF IPC
AND SEC.23, 115 OF KARNATAKA EDUCATION ACT
AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED
CRIMES ACT.
****
IN CRIMINAL PETITION NO. 4325/2016
BETWEEN:
K. S. RANGANATH,
S/O LATE K. SHIVAPPA, AGE : 49 YEARS,
OCC: ASST. ENGINEER PWD
(RECENTLY PROMOTED),
R/O G-A, NAMAN APARTMENT,
II CROSS ROAD, IDEAL HOMES,
RAJARAJESHWARINAGAR,
BENGALURU - 560 098
(NOW IN JUDICIAL CUSTODY). .. PETITIONER
(BY SRI. H. S. CHANDRAMOULI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY THE POLICE OF MALLESHWARAM,
POLICE STATION,BENGALURU - 560 001.
REP. BY THE S.P.P.,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001. ... RESPONDENT
(BY SRI. P. M. NAWAZ, SPP-I)
3
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 CR.P.C PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.37/2016 OF
MALLESHWARAM P.S., BANGALORE FOR THE
OFFENCE P/U/S 418, 420, 381, 201, 120B OF IPC
AND SEC.115, 23 OF KARNATAKA EDUCATION ACT
AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED
CRIME ACT.
******
IN CRIMINAL PETITION NO. 3834/2016
BETWEEN:
OBALARAJU, S/O LATE OBALAIAH,
51 YEARS, OCCUPATION ASSISTANT
DIRECTOR IN SMALL SAVINGS AND PENSION
DEPARTMENT, GOVT., OF KARNATAKA,
AND SPECIAL OFFICER OF
MIN. FOR MEDICAL EDUCATION,
VIDHANA SOUDHA, BANGALORE.
R/AT NO 21, 3RD CROSS, 7TH MAIN,
SRIRAMPURAM, BANGALORE - 560 029
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE ) ... PETITIONER
(BY SRI. HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY MALLESHWARAM POLICE,
BANGALORE AND THE C.I.D.
POLICE, BANGALORE - 560 003.
(REP. BY LEARNED BY S.P.P.,
HCK, BANGALORE - 560 001.) ... RESPONDENT
(BY SRI. P. M. NAWAZ, SPP-I)
4
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 CR.P.C PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.37/2016 OF
MALLESHWARAM P.S., BANGALORE FOR THE
OFFENCE P/U/S 115 R/W 23 OF KARNATAKA
EDUCATION ACT AND SEC.418, 420, 381, 120B, 201
OF IPC AND SEC.3 OF KARNATAKA CONTROL OF
ORGANSIED CRIMES ACT.
******
IN CRIMINAL PETITION NO. 4407/2016
BETWEEN:
SRI. B. ANIL KUMAR,
AGED ABOUT 46 YEARS,
S/O SRI.C. BASAVARAJAIAH,
R/AT NO.29, PANCHAKSHARAIAH
LAYOUT, ULLALU, ULLALU
UPANAGARA POST
BANGALORE - 560 110. .. PETITIONER
(BY SRI. MOHAN S., ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REP. BY MALLESWARAM POLICE,
NOW INVESTIGATED BY CRIMINAL
INVESTIGATION BRANCH,
BANGALORE - 560 003.
REP. BY S.P.P. ... RESPONDENT
(BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 CR.P.C PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.37/2016 OF
MALLESHWARAM P.S., BANGALORE FOR THE
OFFENCE P/U/S 418, 420, 381, 201, 120 OF IPC AND
5
SEC.115, 23 OF KARANATAKA EDUCATION ACT AND
SEC.3 OF KARNATAKA CONTROL OF ORGANIZED
CRIME ACT.
******
IN CRIMINAL REVISION PETITION NO. 760/2016
BETWEEN:
OBALARAJU, S/O LATE OBALAIAH,
51 YEARS, OCCUPATION ASSISTANT
DIRECTOR IN SMALL SAVINGS AND PENSION
DEPARTMENT, GOVT., OF KARNATAKA,
AND SPECIAL OFFICER OF
MIN. FOR MEDICAL EDUCATION,
VIDHANA SOUDHA, BANGALORE.
R/AT NO 21, 3RD CROSS, 7TH MAIN,
SRIRAMPURAM, BANGALORE - 560 029
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE ) ... PETITIONER
(BY SRI. HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY MALLESHWARAM POLICE,
BANGALORE AND THE C.I.D.
POLICE, BANGALORE - 560 003.
(REP. BY LEARNED BY S.P.P.,
HCK, BANGALORE - 560 001.) ... RESPONDENT
(BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 09.06.2016 PASSED
IN CR.NO.37/2016 OF MALLESHWARAM P.S.,
BANGALORE WHICH IS BEING INVESTIGATED BY THE
6
CID POLICE, BANGALORE PENDING ON THE FILE OF
PRL. CITY CIVIL AND S.J., AND DESIGNATED SPL.J.,
UNDER THE KARNATAKA CONTROL OF ORGANISED
CRIMES ACT, 2000, BANGALORE AS ILLEGAL AND
CONSEQUENTLY, ENLARGE HIM ON BAIL ON SUCH
TERMS AND CONDITIONS.
******
IN CRIMINAL REVISION PETITION NO. 806/2016
BETWEEN:
K. S. RANGANATH,
S/O. LATE K. SHIVAPPA,
AGED ABOUT 49 YEARS,
OCC: ASST. ENGINEER,
PWD (RECENTLY PROMOTED)
R/O. G-A, NAMAN APARTMENT,
II CROSS ROAD, IDEAL HOMES,
RAJARAJESHWARINAGAR,
BENGALURU - 560 098,
(NOW IN JUDICIAL CUSTODY) ... PETITIONER
(BY SRI. H.S. CHANDRAMOULI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY THE POLICE OF MALLESHWARAM P.S.,
BENGALURU - 560 001,
REP. BY THE S.P.P., H.C.K.,
BENGALURU - 560 001,
(NOW BEING INVESTIGATED BY CID) ... RESPONDENT
(BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397(1) R/W 401 CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 15.06.2016 PASSED
7
BY THE PRL. CITY CIVIL AND S.J., BENGALURU IN
CR.NO.37/2016 REGISTERED ON THE FILE OF
MALLESHWARAM P.S., BANGALORE (NOW BEING
INVESTIGATED BY CID, BANGALORE) FOR THE
OFFENCES P/U/S 418, 420, 381, 201 AND 120(B) OF
IPC AND SEC. 115 AND 23 OF KARNATAKA
EDUCATION ACT CONSEQUENTLY ENLARGE THE
PETITIONER ON BAIL.
*****
THESE CRIMINAL PETITIONS AND CRIMINAL
REVISION PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS AND ADMISSIONS ON
01.07.2016, COMING ON FOR 'PRONOUNCEMENT OF
ORDERS' THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In these Criminal Petitions, A2, A3, A6 and A7 in Crime No. 37/16 on the file of Respondent police, have approached this Court for grant of regular bail u/s.439 of Cr.P.C. In Criminal Petition No.4251/2016 - A2, in Criminal Petition No.3834/2016 - A3, in Criminal Petition No.4325/2016 - A6 and in Criminal Petition No.4407/2016 - A7, are before this Court, as they failed to get bail before the trial Court on merits.
2. It is also worth to mention here that A3 - Obalaraju and A6 K.S. Ranganath have also filed 8 applications before the trial Court u/s.167(2) of Cr.P.C. for grant of statutory bail and their bail petitions were dismissed. Against that order, A3 and A6 have preferred Criminal Revision Petitions in Nos. 760 and 806/2016 respectively. All the matters are heard and taken up together for disposal.
3. Before adverting to the arguments of the learned counsels for the petitioners and SPP for respondent - State, it is just and necessary to have the brief factual matrix of this case.
4. The Joint Director of Pre-University Board, Bengaluru, has lodged a First Information report on 22.3.2016 making allegations with regard to the leakage of chemistry question paper pertaining to II PU Examination, which was scheduled to be held on 21.3.2016. On the basis of such information, a case was registered in Crime No.37/2016. Initially, the case has been registered for the offences punishable under sections 418, 420, 321 of IPC and also under Sections 9 115 and 23 of the Karnataka Education Act, 1983. Thereafter, the jurisdictional Police i.e., Malleshwaran Police have initiated the investigation. Subsequently, considering the gravity of the offence and the nature of the allegations and seriousness of the issue, the Government of Karnataka has handed over the investigation to CID. It is also pertinent to note that, subsequent to the registration of the Crime, the Pre- University Board re-scheduled the PUC Chemistry examination to be held on 31.3.2016, as the Government has cancelled the earlier scheduled date of examination of Chemistry paper on 21.3.2016. Shockingly, the Chemistry re-scheduled examination question paper was also leaked prior to the examination and in this regard, another case in Crime No.48/2016 was registered on 31.3.2016 for similar offences by Malleshwaran Police Station, but the said case was also subsequently transferred to CID for investigation. There is no dispute that all the petitioners were arrested in connection with this case and they have been 10 languishing in jail from the date of their arrest. A2 and A3 were arrested on 4.4.2016, A6 & A7 were arrested on 13.4.2016.
5. It is the case of the prosecution, as could be seen from the records and objection statement filed by the SPP in all the cases that the PUC Science stream question paper has reached the concerned Districts and Taluks prior to the date scheduled for the examination. It is alleged that all the accused persons have conspired and formed into a Syndicate and in furtherance of the conspiracy, A15 Santosh Agasimani and A-14 Kumaraswamy have gained access to the strong room of the Sub Registrar's office and opened the chemistry question paper (technical bundle) and took the photographs and put the bundles back intact. Later, the print out copies of the question papers were taken using laptop with the help of A1-Manjunath and thereafter, the copies were distributed and also allowed to be taken down by the conspirators for several lakhs 11 of rupees. It is further alleged that A-1 Manjunath handed over those question papers to the other accused persons. Thereafter all the other accused persons have assembled in the house of A-13 Narayana copied the question paper facilitated the other accused persons to have the question paper. It is alleged that A2 Rudrappa passed on the handwritten question paper to A6 Ranganath and in turn the said A6 Ranganath has passed on the contents of the question paper to particularly other petitioners herein ie; A3 Obalaraju and A7 Anil Kumar and they in-turn, provided the question paper to their children, who were studying in the PUC in order to facilitate their children to write PUC Chemistry examination on the day scheduled.
6. Looking to the above said factual aspects, the main allegations made against the above said petitioners are that they have acquired Chemistry question paper from A1 and then, distributed the said question paper amongst themselves in order to facilitate 12 their children to write the examination. It is also alleged that the petitioners have actually purchased the question paper by paying lot of money to A1.
7. The factual matrix also discloses that A2 - M.V. Rudrappa is an Office Superintendent in PWD Department, Bengaluru. His daughter was studying in PUC. A3 - Obalaraj has been working as Assistant Director in Small Savings and Pension department and as on the date of the alleged offence he was working as Special Officer to Minister for Medical Education Karnataka. It is alleged that his son has taken the PUC examination during that time. A6 - K.S. Ranganath is the Asst. Engineer in PWD and his son has taken the PUC examination during that time. A-7 B. Anil Kumar is not a public servant but he is a person who was in politics and his son has taken the II PUC Examination during that time. The main allegations against these accused persons, as could be seen from the objection statement that they have secured the question paper 13 from A1 and in-turn, A1 has secured from the main accused persons. For the purpose of providing the question papers to their children, the petitioners herein have indulged in such activity.
8. It is also worth to note here, during the course of the investigation, CID police have also invoked the provisions i.e., Section 3 of KCOCA Act. i.e., Karnataka Control of Organised Crime Act, 2000, after taking the permission from the competent authority. Being aggrieved by the said invocation of the KCOCO Act, all the petitioners have approached this Court by way of Writ petitions and this Court on different dates, has passed a detailed order after hearing both the parties and stayed the invocation of the provisions of Section 3 of the KCOCO Act. The above said factual aspects are not in dispute.
9. In this background, now let me see the submissions made by the learned counsel for the petitioners and the learned SPP.
14
10. Sri H.S. Chandramouli, learned counsel appearing for A6, Sri Hashmath Pasha, learned counsel appearing for A3, Sri Sandeep S. Patil, learned counsel appearing for A2, Sri Sri Mohan S, learned counsel appearing for A7 have submitted before the Court that there is absolutely no allegations against the petitioners that they were in any manner involved in any other case earlier to the present one and there is no material to show the connection between the main accused persons and these petitioners.
11. It is further contended that, the trial Court has dismissed the bail petition only on the ground that Section 3 of the KCOCO Act is punishable with imprisonment for life, without properly appreciating that the said provision is not at all attracted so far as these petitioners are concerned. The petitioners are law abiding citizens and some of them are public servants and they are working in different departments since more than 22 to 25 years with un-blemished service 15 record. From the date of their arrest i.e., from 4.4.2016 and 13.4.2016 no charge sheet has been filed within 60 days and even the trial Court has not properly appreciated with regard to their entitlement for bail u/s.167(2) of Cr.P.C. Only taking into consideration the societal impact of the alleged offences against the petitioners herein rejected the bail petition. The allegations against the petitioners herein prima -facie establish that they are not the main culprits. However, they got the question paper from A1, who in-turn got the question paper from the main accused. The petitioners have distributed the same amongst their children and i.e., the mistake they have committed. There are absolutely no previous bad antecedents alleged against the petitioners herein.
12. It is further contended that the High Court has stayed the very invocation of KCOCO Act after hearing the State in detail, as the invocation itself is stayed and other offences are not punishable with death 16 or imprisonment for life but maximum punishment does not exceed 7 years. Therefore, as a matter of right, the petitioners are entitled to be enlarged on bail. Of course, the Court has also responsibility to look into the societal impact, but it does not mean to say for uncertain period, the petitioners have to be incarcerated. The petitioners are law abiding citizens and they are in public domain and public servants, and they are ready and willing to offer substantial surety and abide by any of the conditions that may be imposed by the Court. Therefore, it is prayed that their bail petitions deserve to be allowed.
13. Per contra, learned SPP Sri P.M. Nawaz, appearing for the State, strenuously contends that though the invocation of KCOCO Act is stayed, it is stayed only for a limited period of eight weeks. There is every chance of vacating of the stay order. In this context, the investigating agency would get 180 days with permission of the Court to investigate the matter 17 under the KCOCA Act. Considering the seriousness of the offences and gravity and nature of the allegations made against the petitioners, thorough and detailed investigation has to be conducted. The records reveal that large number of accused persons are involved in the Syndicate and they have committed the offences under the KCOCO Act also. When the petitioners having knowledge that the question paper has been leaked, their duty as dutiful citizens of the country is to inform the police. But, in this regard, they have utilized the same for their personal advantage. Therefore, they are not entitled to be enlarged on bail at this stage. A1, A9 A14 and A15 are the main accused persons who have at the initial stages gave the question paper and thereafter they were distributed. There are 5 cases against A9 Shivakumar, and there are three cases against A-14. In view of the conspiracy amongst all the accused, the petitioners are not entitled to be enlarged on bail. On these grounds, learned SPP sought for rejection of the above said bail petitions. 18
14. I have heard the detail arguments with regard to the bail petitions on merits and also Criminal Revision Petitions. It is worth to note here that if the petitioners are entitled to be enlarged on bail on merits of their case, the Revision Petitions preferred by A2 and A6 will become automatically in fructuous. Therefore, I would like to consider the bail petitions first and then consider their Revision Petitions.
15. On the basis of the above said facts and materials on record, the point that would arise for consideration of this Court is that:
(1) Whether the petitioners have made out substantial ground for grant of bail u/s.439 of Cr.P.C.?
(2) What order?
16. The general principles of bail u/s.438 and 439 of Cr.P.C. are not applicable in the event if the Court come to the conclusion that, if KCOCO Act is made applicable to the case on hand. There are certain 19 riders put by the statute i.e., under Section 22 of the KCOCO Act, which excludes the application of Section 438 of Cr.P.C. if the accusation of having committed an offence under the said act. So far as Section 439 of Cr.P.C. is concerned, the Court has to give an opportunity to the learned Public Prosecutor (P.P) to oppose the application and that if the learned P.P opposes the application, the Court has to satisfy itself that there are reasonable grounds for believing that the accused are not guilty of such offence and that they are not likely to commit any offence while on bail then only bail can be granted. Further, the accused also shall not be granted with bail, if it can be visualized by the Court that, while they were on bail, commit any offence under this Act or under any other Act for the time being in force. The limitations of granting of bail are specified, in addition to the limitations under Cr.P.C. or under any other law for the time being in force for granting of bail. 20
17. Therefore, on plain reading of the above said provision, it is not that merely because the accused is in custody, they are automatically entitled to be enlarged on bail. The offences u/s.3 of the KCOCO Act, is punishable with death or imprisonment for life. The abetment of the crime specifically alleged against the petitioners in this case, falls u/s.3(2) of KCOCO Act and it is punishable with imprisonment for a term which shall not be less than 5 years which may extend to imprisonment for life and shall also be liable to fine, which shall not be less than Rs.5 lakhs. Considering the seriousness of the offence under the KCOCO Act, stringent provisions have been introduced inthe special Act. Therefore, the Court must be very careful in dealing with the offenders under the said enactment.
18. In this background, first let me consider whether KCOCO Act is applicable so far as the petitioners are concerned at present. It is an undisputed fact that all the petitioners have approached 21 the High Court in WP No.28987/2016, 29943/2016, 33145/2016 and 35424/2016 respectively challenging the invocation of the KCOCO Act against them. This Court after providing opportunity to the State and after hearing in detail, has come to the conclusion that the invocation of Section 3 of the KCOCO Act against the petitioners is not proper and it needs to be considered by the Court in detail. Therefore, the Court has passed the orders in the following manner -
"In the circumstances, invoking the privision of section 3 of KCOCA against the petitioner A 3 is stayed for a period of 8 weeks. However it is made clear that the investigation can go on. What is stayed is only invoking of section 3 of KCOCA Against the petitioner i.e. A3".
Order passed in W.P. No.28987/2016 dated 6-6-2016 is only extracted and similar orders were passed in all the writ petitions on different dates, which fact is not in dispute.
22
19. This order clearly indicates that, so far as the invocation of the provisions of Section 3 of the KCOCO Act has been stayed. Further, the investigation so far as other offences are concerned is permitted to be continued. It goes without saying that, by virtue of the above said stay order, the investigating agency can go on with the investigation so far as other offences are concerned, but not under the KCOCO Act for the time being so far as Petitioners are concerned. However, the order also discloses that during the course of further investigation, if the respondent police find any material and that the KCOCO Act has to be invoked once again or for any changed circumstance, the police are entitled to invoke the KCOCO Act, they can do so in view of the above said order of the writ Court.
20. On the basis of the above said Stay Order granted by the Court, the learned counsels for the petitioners strenuously contend that when KCOCO Act itself is not made applicable and invocation is stayed, 23 the other provisions under the IPC and Education Act are not punishable with imprisonment for life but to the maximum extent, they are punishable for a period of seven years. Therefore, the petitioners are entitled to be enlarged on bail.
21. In this background, it is worth to mention here the rulings of the Hon'ble Apex Court, in a decision reported in AIR 1997 SC 2575 between Chandraswami and another Vs. CBI, wherein the Hon'ble Apex Court has observed that -
"Ordinarily a person who is suspected of having committed an offence u/s.120-B read with Section 420 of IPC would be entitled to bail; of course the paramount consideration would always be to ensure that the enlargement of such persons on bail will not jeopardize the prosecution case."
22. In another ruling reported in (2005) 5 SCC 294 between Ranjitsing Brahmajeetsing Sharma Vs. 24 State of Maharashtra and another, the Hon'ble Apex Court has also observed that -
"It should also be kept in mind that the Act does not differentiate between offences entailing life imprisonment and those entailing only one or two years' imprisonment, that some acts of commission or omission on the part of a public servant may attract disciplinary proceedings but not penal provisions and that merely because some allegations have been made against a high-ranking officer which cannot be brushed aside, but it is by itself not sufficient to deny him bail.
Dealing with KCOCO Act, the Hon'ble Apex Court has further observed that -
"The Act should be so construed so as to maintain a delicate balance between judgment of acquittal and conviction and an order granting bail much before commencement of trial - Further held, satisfaction of Court as regards applicant's likelihood of not committing an offence while 25 on bail must be construed to mean an offence under the Act and not any offence whatsoever, be it a minor or major offence."
23. In another ruling reported in (2012) 1 SCC 40 (CRL) between Sanjay Chandra Vs. Central Bureau of investigation, the Hon'ble Apex Court has observed that:
"Relevant considerations in granting such conditional bail u/s.437 and 439 of Cr.P.C., gravity of alleged offence, severity of punishment prescribed in law, both parameters, held, ought to be taken into consideration simultaneously. Gravity alone cannot be decisive ground to deny bail. Competing factors to be balanced by Court while exercising its discretion - Protection of personal liberty against securing attendance of accused at trial - presumed innocence till a person is convicted - Hardship caused to individual on account of detention before conviction - Unnecessary burden on State to keep a person who is yet to be proved guilty. Constitutionally protected liberty must be respected unless detention becomes a 26 necessity. Bail is the rule and jail is an exception. Each case however to be decided on its own merits. Apprehended tampering of evidence and other criteria have to be considered. Taking into account all the circumstances, balanced approach has to be adopted by the Court in granting bail subject to certain strenuous conditions and also giving liberty to the State for cancellation or modification of bail , if the parties violate the conditions imposed upon them."
24. Though the learned counsels for the petitioners have cited many number of rulings so far as it relates to the offences under the KCOCO Act is concerned, in my opinion, it may not be proper on the part of this Court, to give any finding as to whether the allegations attract the KCOCO Act against the petitioners or not?. The only question which the Court has to consider is whether the Stay granted staying the invocation of the provisions of the KCOCO Act itself is sufficient to grant bail to the petitioners or what is the effect of such stay order ?. Further, if any observation 27 made by this Court with regard to attraction of the KCOCO Act and the application of the provisions of the KCOCO Act to the petitioners, it may contradict the decision that may be rendered by the Court under Article 226 of Constitution read with section 482 of Cr.P.C. In this background, the Court has to maintain self restraint but only consider the effect of the Stay Order granted by the Writ Court while exercising powers u/s.482 of Cr.P.C.
25. Be that as it may, the factual allegations against the petitioners are also bare some important aspects so far as this case is concerned. The conduct of the accused as contended by the learned SPP and damage occurred to the State and also the necessity of continuing custody of the petitioners till the filing of the charge sheet, reasonable apprehension of hampering the investigation or tampering the witnesses and securing of the accused for trial etc., are the important factors that has to be considered by this Court. 28
26. It is worth to mention here and as could be seen from the entire objection statement filed by the State before this Court as well as before the trial Court which divulges the exact allegations of the investigating agency that, A9 - Shivakumaraiah @ Shivakumar is the leader of the organized crime Syndicate and having formed the syndicate, has committed more than one offence which are punishable with imprisonment for three years and more. A9 is the king pin and active member of the organized crime syndicate. The master mind behind the conspiracy is A9, who has calculated to obtain the original question paper by illegal means for wrongful gain. The petitioners however are the beneficiaries in getting the question paper of Chemistry for their children. In this background, it is alleged that A1 received an amount of Rs.13 lakhs from A-13 Narayana. A4 and A5 have obtained Rs.50,000/- from A1 for having cooperated in the alleged crime. It is the further case that A9 circulated the question paper through A10 and A11 for undue pecuniary gain. A9 has 29 been involved in the commission of the offence for the past ten years and various cases have been pending against him. A14 is also involved in various cases, and some cases are also pending against A-16.
27. It is further submitted that the petitioners, in order to secure distinction to their children in Chemistry paper without merit in an indirect and immoral way, obtained question paper of the examination by paying amount to the persons who got leaked the question paper and handed over the same to their children. There are no other allegations that, the petitioners have actually sold the question paper for making wrongful gain for themselves, as alleged against some other accused.
28. The learned counsel for the petitioners pointing out the distinction between the other accused persons with that of the petitioners as noted above, has relied upon a decision reported in (2015) 7 SCC 440 between Prasad Shrikant Purohit Vs. State of 30 Maharashtra and another, wherein the Hon'ble Apex Court dealing with the Maharashtra Control of Organised Crime Act, has discussed with regard to the role of A7 and other accused in that case. It is observed by the Hon'ble Apex Court in the said case in the following manner:
"Insofar as A-7 is concerned, he has been charge-sheeted in Parbhani, Jalna as well as Malegaon bomb blasts - Materials available on record disclose that he had a nexus with member of an "organized crime syndicate" and also had every nexus with "organized crime" of the two earlier cases, namely, Parbhani and Jalna bomb blasts and also had direct involvement in the present bomb blast at Malegaon - Hence, insofar as A-7 is concerned, commission of "continuing unlawful activity" of an "organized crime" on behalf of an "organized crime syndicate" by A-7 is satisfactorily shown - Hence, bar against bail under S. 21(4) attracted against A-7 - However, involvement of the remaining appellants cannot be ascertained either by way of their nexus with any accused who is a 31 member of an "organized crime syndicate" or such nexus with "organized crime" which pertains to Parbhani and Jalna bomb blasts - But possibility of evidence in support of such nexus coming to light later cannot be ruled out as investigation is continuing - It, therefore, cannot be declared that MCOCA was not attracted and, therefore, they should be discharged - But, bar under S. 21(4) not attracted against them based on materials currently on record."
29. Based on the above said decision, it can be visualized that, the allegations against the other accused persons who have actually committed the offence and indulged themselves in leaking out the question paper are distinct and separate compared to the petitioners. However, the conduct of the accused persons as argued by learned SPP., in giving the question paper to their children is inhuman and it virtually amounts pronouncing death knell so far as the other students who have worked hard and who have burnt their mid night oil for the purpose of getting 32 distinction on merit in the examination. That what exactly the petitioners have done. Their eyes were blind folded due to the love and affection towards their children, ignoring the interest of other students in the State. However, at this stage, as observed by the writ Court while granting the Stay Order, the allegations against these petitioners falls short of attracting the provisions under the KCOCO Act. As could be seen from the entire materials on record, there is no allegations whatsoever either in the objection statement filed before this Court or before the trial Court that, earlier to the present incident or with reference to the other cases, there is no allegations that the petitioners are the members of the Syndicate in order to commit any offence earlier to the present one. Though the distinction is available, but this Court is not on the basis of such distinction can grant bail, it goes without saying that, whether they are the members of the Syndicate or not?, whether they have committed the offence under the KCOCO Act or not has to be thrashed 33 out as rightly argued by the learned SPP only after Writ Court gives its finding and completion of the entire investigation. But the question now arises before this Court is how long the petitioners have to wait for completion of the investigation. As it is evident that since more than 90 days, the petitioners have been languishing in Judicial Custody, no allegations have been made that, while in jail they have made any attempts to tamper with the witnesses including their own children. There is no allegations that these petitioners were involved in any other offences prior to the present one and there is no allegations that there was any previous bad antecedents. Even the learned SPP has not argued on any aspect that the petitioners have committed any illegality or any offence while discharging their duties as public servants, and any departmental enquiry or proceedings are pending. Therefore from isolated one case, the petitioners cannot be doubted as anti social elements.
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30. In this background, the Court has got responsibility of looking at the case in three dimensions. The Court has to bear in mind the interest of the victim and the interest of the accused with regard to the right of liberty guaranteed under the Constitution of India and also the societal impact of the alleged offences.
31. In this context learned SPP relied upon a decision of the Delhi High Court in W.P. (Crl) 1555/2011 and Crl.M.A No.17832/2011(Stay) dated 21.5. 2012, wherein the court has observed thus:
As held in Burrakur Coal Co.
Ltd.(supra), here the language used by the parliament is too general, the preamble of the enactment may be resorted to explain it. As per the aims and object of MCOCA, it was enacted to curb organized crime which has posed a very serious threat to our society. The activities mentioned therein range from killing, extortion, smuggling, terrorism, illegal trade in narcotics, money laundering etc. The list is not exhaustive. Further, one of the essential considerations is also the activities 35 covered under the money laundering. As per the Schedule, offences of forgery and cheating by personation etc. are also covered in the Prevention of Money Laundering Act, 2002. In view of the aims and objects of MCOCA though cases of simplicitor cheating and forgery may not come under the "unlawful means" however, if the same are committed in manner as an organized crime, particularly effecting the results of the examination, thus, de-stabilizing the education system, the said activity would certainly fall within the ambit of "unlawful means" as required in "organized crimes". The said "unlawful activity" has some semblance to coercion, intimidation etc. as the same is performed by manipulation at an extensive level."
32. Of course, the learned SPP is right in contending that much damage has been occurred to the State in postponing the examination twice and conducting the examination later. In my opinion, it is the damage occurred to the State. If the offences are proved, such damage can very well be recovered from the accused persons by levying heavy fine. That itself is 36 not sufficient to reject the bail petition so far as the petitioners are concerned, considering their distinct involvement in the crime. Of course, the petitioners have not conducted themselves as dutiful citizens of the country. They have treated their children not on par with the other students who have taken the examination. But one thing is clear that the Government has taken a wise decision at right point of time in postponing the examination, twice. Therefore, no much damage has been occurred even to the students because they have written the examination subsequently and their merit and distinction is not jeopardized but the same is protected by taking timely decision. But it must have caused great inconvenience to the students who have to further study hard and take the examination. Though the conduct of the accused as argued by SPP may be inhuman and unacceptable but that sole circumstance is not sufficient to reject the bail. For the isolated wrong committed by them in their life, they have already paid 37 some penalty as they have been in Judicial Custody for more than 90 days, and also suffered humiliation amongst their relatives and friends.
33. In view of the stay granted by the writ Court, as I have already expressed, the investigation so far as the KCOCO Act is concerned and invocation of the provisions under the KCOCO Act is concerned the investigation under that Act with respect to the petitioner is deferred with uncertainty. The respondent has not filed any charge sheet so far as the other offences under the IPC and Education Act is concerned within 60 days. Though the stay order has been granted by the High Court, no permission granted for further investigation into the crime, under KCOCA Act against the petitioners unless it is again invoked. Until and unless stay order granted by the writ Court, staying the operation and invocation of the KCOCO Act is vacated or those petitions are dismissed, the police cannot proceed with the investigation and file any report 38 to the Court so far as the KCOCO Act is concerned without invoking the act on changed circumstances. Therefore, at this stage, when the Stay Order is operating, the Court has to presume that currently no KCOCO Act is invoked by the police so far as these petitioners are concerned.
34. In view of the Stay Order, the investigation and invocation of the KCOCO Act is indefinitely deferred. In this background, right of liberty of a person as guaranteed under the constitution play a dominant role. When uncertainty is glaring on the face of the records, the Court should exercise its judicious discretion in order to safeguard the interest of the accused also. As I have already narrated though some damage has been occurred to the State and to the students who have taken the examination of II PU during the said period, but the same has been solved by the Government by conducting the examination afresh later. Under the above said peculiar circumstances of 39 the cases, the petitioners in my opinion, are entitled to be enlarged on bail with certain stringent conditions.
35. The interest of the State should also be safeguarded by mentioning here that if for any reason, the stay order granted by the writ Court is not continued or vacated and the police start the further investigation into the KCOCO Act, or if the petitioners violate any of the conditions imposed by this Court, then they can very well approach the Court for cancellation of the bail.
36. The learned State Public Prosecutor seriously contends before the Court that the petitioners who are high profile officers working in different departments, if they are released on bail, there are chances of they tampering with the prosecution witnesses. Therefore, atleast till the filing of the final report their bail petition deserves to be rejected. Thus, the Court has to consider the reasonable likelihood of the applicant interfering with the witnesses for the 40 prosecution or otherwise polluting the process of justice. It is not only traditional, but rational. In this context the Court has to enquire into the antecedents of a man who is applying for bail to find out whether he has a bad record. Particularly a record which suggests that he is likely to commit serious offence while on bail. It is part of criminological history that a thoughtless bail order may enable the bailee to exploit the opportunity to inflict further crimes on the members of the society. Therefore, the Court should be very careful while exercising the discretion, but the discretion should be on the basis of the materials on record. It is significant to note in this regard that even in the objection statement or in the records available, there is absolutely no allegations whatsoever so far it relates to these petitioners are concerned that their antecedents are not good and at any point of time, they were involved in any criminal activities and also they have earned bad antecedent in their professional career as such. Without there being any such materials on record, the 41 Court cannot at this stage, imagine or jump to a conclusion that if they are released on bail, they will use their power, to tamper with the prosecution witnesses or tamper the further investigation if any in future. This has to be tested by providing an opportunity to the petitioners. If they indulge in hampering the investigation if any in future, the State Government is at liberty to move the Court for cancellation of bail by furnishing sufficient materials to the satisfaction of the Court. Therefore, that ground at present is not available to the State.
37. Looking to the above said facts and circumstances of the case, considering the uncertainty in the investigation and filing of the final report, considering the valuable right of liberty of the petitioners and also providing remedy to the State to file application for cancellation of bail in future, I am of the opinion that the petitioners are entitled to be enlarged on bail.
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38. Orders on Revision petitions:
Sofar as it relates to Crl.R.P. 760/2016 and 806/2016 are concerned, the petitioners by name Obalaraju and K.S. Ranganath have in fact filed application under Section 167(2) of Cr.P.C. for grant of statutory bail before the trial Court in Cr. No. 37/2015 on the ground that the KCOCA Act invoked by the Investigating Agency has been stayed by the High Court and therefore, the other offences which are invoked by the Investigating Agency are not punishable with death or imprisonment for life or for the imprisonment which may extend to 10 years, but, the offences invoked under the Indian Penal Code and under Karnataka Education Act are to the maximum extent punishable for a period of seven years. Therefore, the charge sheet ought to have been filed within 60 days and as the charge sheet has not been filed within that period, the petitioners are entitled for statutory bail under Section 167(2) of Cr.P.C.43
39. The above said arguments of the learned counsel Sri. Hashmath Pasha and Sri. Chandramouli appearing for the petitioners appears to be attractive, but in fact the said argument, in my opinion, is not sound enough to grant statutory bail in favour of the petitioners. The trial Court in fact, has considered Section 167 of Cr.P.C. and also Section 22(2) of KCOCA Act. Section 22(2) of the KCOCA Act empowers the Investigating Agency that, if the KCOCA Act is invoked and if the filing of the charge sheet is not possible within 90 days, then, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the period of 90 days, the Special Court can extend the said period upto 180 days. The trial Court has concluded that, 90 days has not been completed and as only 60 days have been completed from the date of remand of the said petitioners, they are not entitled for grant of bail under Section 167(2) of Cr.P.C., in view of the invocation of KCOCA Act.
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40. As I have already noted, in Writ Petition No.28987/2016 sofar as the petitioner-Obalaraju is concerned and in Writ Petition No.27943/2016 sofar as the petitioner K.S. Ranganath is concerned, this Court has granted stay sofar as KCOCA Act is concerned for a period of 08 weeks. The Court has also clarified that, whether invocation of the provision of Section-3 of KCOCA Act is proper or not, needs to be considered by the Court, therefore, stay was granted for 08 weeks.
41. The argument of the learned counsel that, as the KCOCA Act has been stayed by this Court, the charge sheet ought to have been filed sofar as the other offences under Indian Penal Code and Education Act are concerned, within 60 days from the date of remand of the accused persons, otherwise, the bail should be automatic. The said argument of the learned counsel, in my opinion, is not acceptable for the simple reason that, invocation of the KCOCA Act is only stayed for a limited period of 08 weeks.
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42. This Court cannot imagine as to what order the Court may pass sofar as the said cases are concerned. If for any reason the Court permits the police to investigate the matter under the KCOCA Act and other provisions by vacating the stay order or by dismissing the petition, in that eventuality, the Investigating Agency would get an opportunity to investigate the matter. It is only a suspended period during the operation of the stay order granted by the Court, if for any reason, the writ petitions are allowed and invocation of the KCOCA Act itself said to be invalid, then the petitioners may be entitled for bail under the said provision. However, at this stage, though it is uncertain with regard to the invocation of KCOCA Act, but nevertheless, the KCOCA Act has already been invoked by the police, they can revive their power of investigation subject to further order in the writ petitions. Therefore, I am of the opinion that, it cannot be said that the police ought to have filed charge 46 sheet in part within 60 days and infact within 180 days as the case may be with the permission of trial Court. Therefore, the above said argument of the learned counsels cannot be accepted.
43. Considering the stay order passed in the writ petitions and also considering the other material on record and also considering the long incarceration of the petitioners for more than 90 days, this Court has taken a view that the petitioners are entitled to be enlarged on bail, particularly under Section 439 of Cr.P.C. As the petitioners in the Criminal Petitions are ordered to be enlarged on bail, the present Revision Petitions becomes infructuous.
44. With these observations, I am of the opinion that the Revision Petitions are liable to be dismissed. Further, I am of the opinion, that if conditional bail is granted in favour of the petitioners, it would meet the ends of justice.
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45. For the above said reasons, the following order is passed.
ORDER
Crl.R.P. No.760/2016 and Crl.R.P.
No.806/2016 are hereby dismissed.
The Crl. P. Nos. 4251/2016,
4325/2016, 3834/2016 and 4407/2016 are hereby allowed. Consequently, the petitioners shall be released on bail in connection with Crime No.37/2016 on the file of the respondent Police on the following conditions:
(1) The petitioners shall execute their personal bonds for a sum of Rs.2 lakhs with two solvent sureties for the likesum to the satisfaction of the jurisdictional Court.
(2) The petitioners shall not indulge in tampering the prosecution witnesses or hampering the investigation.
(3) The petitioners shall not leave the jurisdiction of the trial Court without prior permission till the case registered against them is disposed of.48
(4) The petitioners shall appear before the Court on all the future hearing dates unless exempted by the Court for any genuine reason.
(5) The petitioners shall also mark their attendance once in a week before the respondent - Police on every Sunday between 10.00 am to 5.00 p.m., till the filing of the final report, or for a period of Three months which ever is earlier.
(6) It is made clear that State is at liberty to move the Court for cancellation of bail in case of violation of any of the above conditions noted above or if the respondent -
Police, invoke the provisions under the KCOCO Act in future on any changed circumstance as referred to in the body of this order.
Sd/-
JUDGE PL*