Karnataka High Court
Smt. J. Vanitha @ Thangam vs State Of Karnataka on 24 November, 2020
Bench: Chief Justice, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. ABHAY S.OKA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO.1074/2020
BETWEEN:
Smt. J.Vanitha @ Thangam
W/o Jagannathan
Aged 49 years
Residing at No.F-38
L.N.Building, 2nd Floor
3rd Cross, 4th Main Road
Near Bramhanand Mutt
Dayananda Nagar
Ramachandrapuram
Bengaluru-560 021. ...APPELLANT
(By Ms. Tarjani Desai along with
Sri S.Balakrishnan, Advs.)
AND:
State of Karnataka
By National Investigation Agency
Bengaluru
Rep. by Advocate Prasanna Kumar
SPP for NIA cases
High Court of Karnataka
Bangalore-560 001. ...RESPONDENT
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21(4)
OF THE NATIONAL INVESTIGATION ACT, 2008 PRAYING TO SET
ASIDE THE ORDER DATED 27.08.2020 IN SPL.C.C.785/2018
PASSED BY THE XLIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL Court FOR NIA CASES, BENGALURU (CCH-
50) AND ALLOW THE PRESENT APPEAL.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
S.VISHWAJITH SHETTY J., MADE THE FOLLOWING:
JUDGMENT
1. This is a successive appeal filed under Section 21(4) of the National Investigation Act, 2008, by accused No.4 in Spl.CC.No.785/2018 pending before the Court of XLIX Additional City Civil and Sessions Judge (CCH-50), Bengaluru (hereinafter referred to as 'Trial Court'), registered for the offences punishable under Sections 489B, 489C, 120B and 34 IPC, challenging the order dated 27th August 2020 passed by the Trial Court rejecting her successive bail application filed under Section 439 Cr.PC.
2. It is not in dispute that the appellant had earlier filed similar appeal before this Court in Crl.A.No.107/2019 challenging the order dated 26th December 2018 passed by the Trial Court rejecting her application filed under Section 439 Cr.PC. The said 3 appeal was dismissed by this Court by order dated 3rd July 2019. This Court while dismissing Crl.A.No.107/2019, has observed as under:
"11. .........The charge sheet has been filed not only for the offence under Section 489C and also invoked Section 489-B and so also Section 120-B. The case of the prosecution is that all the accused persons conspired with each other and indulged in circulating the fake notes and the offence under Section 489 is also punishable with imprisonment for life. The very contention of the appellant's counsel that at the most it comes under Section 489-C cannot be accepted at this stage, for the reason that the Court while considering the bail petition has to consider the material on record that too with prima facie material. In the case on hand, the prosecution also relied upon the CDR analysis records and also the mobile phone which was seized at the instance of this appellant and when one SIM was functioning and the same discloses that she was in touch with accused No.2. Hence, there is prima facie material which discloses that this appellant had connection with accused No.2 and also the court has to take note of the gravity of the offence while considering the matter to enlarge the accused on bail. The amount of Rs.2,50,000/- which are fake notes were recovered at the instance of this appellant and taking note of the same and also the prima facie material 4 with regard to this appellant that she was having connection with accused No.2 who indulged in delivering the fake notes and circulating the same through this appellant, the prosecution is able to prima facie disclose that this accused not only possessed the money and was having nexus with accused No.2, with regard to the circulation of fake notes. Considering the material on record, the contention of the appellant's counsel that at the most it attracts only Section 489-C of Cr.PC cannot be accepted at this stage. Whether the appellant had indulged in circulation of notes or not has to be tested in trial and not at this stage. The contention of the appellant's counsel that proviso to Section 437 can be invoked also cannot be accepted for taking note of the gravity of offence which disturbs the economic stability of the country and hence the judgments relied upon by the appellant's counsel do not come to the aid of the appellant. Hence, we are of the opinion, that there are no grounds to allow the appeal and set aside the order of the Court below to grant bail in favour of the appellant as sought in this appeal. Hence, the appeal is dismissed."
3. Subsequently, the appellant once again approached this Court in Crl.A.No.699/2020 alleging that her application under Section 439 Cr.PC setting out the changed circumstances on which she was to be enlarged on bail was rejected by the 5 Sessions Court on 31st March 2020. This Court having found that the Trial Court had not passed any such order rejecting the appellant's application under Section 439 Cr.PC on 31st March 2020, dismissed Crl.A.No.699/2020 as not maintainable. While dismissing the said appeal, this Court has observed as under:
"6. .........It looks from the averments made in paragraph 8 of the appeal memorandum that request for application being taken up on merits has been rejected and not the application. This appeal is not maintainable. It is needless to state that appellant would be at liberty to work out her rights before the jurisdictional Sessions Court. Hence, without expressing any opinion on merits, this appeal is dismissed as not maintainable."
4. The appellant, thereafter, has once again approached the Trial Court by filing an application under Section 439 Cr.PC, contending that her daughter has given birth to a girl child on 8th June 2020, and therefore, in view of the changed circumstance, appellant may be enlarged on regular bail. The appellant had also prayed to enlarge her on bail in view of the delay in trial. The Trial Court by its order dated 27th August 2020, has dismissed the said application filed by the appellant under Section 439 6 Cr.PC. Being aggrieved by the said order, the present appeal is filed before this Court.
5. Learned Counsel for the appellant submits that since the daughter of the appellant has given birth to a girl child on 8th June 2020, the appellant is required to be enlarged on bail and she submits that it is a changed circumstance which is required to be considered by this Court.
6. Except making a stray statement in the memorandum of appeal that appellant's daughter has given birth to a child and hence, appellant's family needs her support, there is no other averment made in the memorandum of appeal as to why the appellant should be released on bail on this ground. It is not averred in the memorandum of appeal that except the appellant, there is no other member in the family to take care of the mother and the child. Further, admittedly, appellant's daughter has given birth to the child on 8th June 2020 and already more than five months has passed away, and therefore, the said ground made out by the appellant cannot be considered as a substantial 7 change in circumstance entitling the appellant to be enlarged on bail.
7. Further, we cannot loose sight of the fact that the appellant has been charge sheeted for the offences punishable under Sections 489B, 489C, 120B and 34 IPC. For the offence punishable under Section 489B, the appellant could be imprisoned for life. The veracity of the charges leveled against the appellant is required to be decided in a full-fledged trial. At this stage, we are only required to consider as to whether there is prima facie material against the appellant for the alleged offences. This Court in Crl.A.No.107/2019 has already observed that there are sufficient materials available on record to make out a prima facie case against the appellant for the offence alleged against her.
8. The Apex Court in the case of KALYAN CHANDRA SARKAR VS RAJESH RANJAN ALIAS PAPPU YADAV AND ANOTHER - (2005)2 SCC 42, has observed as under:
"20. .........Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been 8 rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. ........."
9. In the case on hand, the appellant has failed to point out any such change in the fact situation or in law. The other grounds urged in the memorandum of appeal have been already considered by this Court in Crl.A.No.107/2019 and rejected. In so far as the contention that the appellant is required to be enlarged on bail because of the delay in trial, the Trial Court has observed that the delay was on account of non-co-operation by the accused persons. Further, in Kalyan Chandra Sarkar's case referred to supra, the Apex Court has held that in view of the guarantee conferred by Article 21 of the Constitution, it is not open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier. It has been also held that persons charged with non- bailable offence cannot question such detention as violative of 9 Article 21 of the Constitution, since the same is authorized by law.
10. Under the circumstances, we find no merit in this successive appeal filed by the appellant praying to enlarge her on bail under Section 439 Cr.PC. Accordingly, the appeal stands dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE KK