Karnataka High Court
Mallanna S/O. Doddalingappa Unner And ... vs The State Of Karnataka on 19 January, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 19TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL PETITION No.201313/2016
Between:
1. Mallanna
S/o Doddalingappa Unner
Age: 38 years, Occ: Agriculture
2. Lingareddy
S/o Maribasappa Padal
Age: 52 years, Occ: Agriculture
3. Anjinappa
S/o Doddalingappa Unner
Age: 36 years, Occ: Agriculture
4. Sharanapa
S/o Marilingappa Unner
Age: 40 years, Occ: Agriculture
5. Basavaraj
S/o Hanumanth H. Gudisali
Age: 32 years, Occ: Agriculture
6. Virupakshi
S/o Maribasappa Padal
Age: 26 years, Occ: Agriculture
All are R/o: Bommanala Gram,
Tq. Manvi Taluk,
Dist: Raichur-584 123
... Petitioners
(By Sri Basavaraj Kareddy, Advocate)
2
And:
The State of Karnataka
Sirawar Police Station
Dist. Raichur-584 129
Through SPP
High Court of Karnataka
Kalaburagi Bench
Kalaburagi - 586 103
... Respondent
(By Sri Prabhugouda S. Patil, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioners on bail in
S.C.No.42/2014 (Crime No.10/2014 of Sirwar Police Station
Raichur) pending on the file of Additional Sessions Judge,
Raichur, which is registered for the offences punishable
under Sections 143, 147, 148, 504, 324, 326, 307, 302, 427,
109 r/w Section 149 of IPC.
This petition is coming on for Orders this day, the
Court made the following:-
ORDER
This petition is filed by the petitioners/accused Nos.3, 5, 6, 8, 10 and 15 under Section 439 of Cr.P.C., seeking regular bail in Crime No.10/2014 of Sirwar Police Station, Raichur, (S.C.No.42/2014) registered for the offences punishable under Sections 143, 147, 148, 504, 323, 324, 326, 307, 302, 427 r/w Section 149 of IPC.
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2. Brief facts leading to filing of the complaint are that on 10.01.2014 complainant-Santosh lodged a complaint with the respondent-Police contending that in the morning hours of the very day some villagers assembled near Eralgadda to discuss about the Kondawada, which was demolished by Devendrappa. In that meeting they decided to call Devendrappa to convince him to leave that place to construct new Kondawada. In that context, the people who gathered there asked Dr. Venkanagouda to send a word to Devendrappa to come to the said place. In pursuance thereto Devendrappa came along with 14 others with deadly weapons and started quarreling with the people gathered there and assaulted Shankrepagouda, father of the complainant. Shivanagouda, Sharanapagouda, Ashok, Hanamanth and Shivalingappa have damaged the car of Venkanagouda. It is stated that due to the said assault, Shankreppagouda died on the spot. Based on a complaint, the respondent-police registered a case 4 in Crime No.10/2014. It is alleged that in the said galata the injured Ashok sustained injuries and succumbed to the injuries on 11.01.2014 in the hospital. It is relevant to mention here itself that the complainant's side assaulted the persons on petitioners' side, at that time some of the accused in the above crime number were also grievously injured, as such, a counter case came to be filed in Crime No.11/2014 for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 504, 506, r/w 149 of IPC against CW.17- Dr.Venkanagouda and CWs.1, 2, 9, 13, 15, 19 and 20 who are witnesses in Crime No.10/2014. Thus, there are case and counter case. After completion of investigation in both the crimes, the police filed the charge sheets. Thereafter they were committed to Sessions Court.
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3. I have heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for respondent-State.
4. The main grounds urged by the learned counsel for the petitioners are that petitioners are in custody since more than three years, the trial has not yet commenced inspite of directions issued by this Court and the Apex Court on earlier occasions. He has also contended that, earlier, petitioners were granted bail and were set at liberty for more than one year and at that time, neither there were overt-act attributed against them nor they indulged in any other crime and as such, their behavior is good and in that light, petitioners are entitled to be released on bail. He has further contended that as the petitioners are innocent persons and they have not committed any offences, the question of they tampering with the prosecution witnesses does not arise. He has also contended that 6 the delay in the trial has been caused due to non- appointing of the learned Public Prosecutor by the Prosecution Department to prosecute the counter case. It is his further contention that detaining the accused persons in the judicial custody for an indefinite period amounts to violation of Article 21 of the Constitution. In order to substantiate the said contention, he has relied upon a decision of the Apex Court reported in (2012) 4 SCC 134 in the case of Dipak Shubhashchandra Mehta vs Central Bureau of Investigation and another. On these grounds, he prayed for allowing the petition.
5. Per contra, the learned High Court Government Pleader appearing for the respondent-State vehemently contended that earlier the Court below granted bail without assigning any reasons and subsequently, the same was challenged before this Court. This Court allowed the petition and has cancelled the bail granted 7 to the accused. He has also contended that on the earlier occasion petitioners had approached this Court. This Court after elaborate discussion and after considering the material on record had come to the conclusion that petitioners are not entitled to be released on bail. He has further contended that petitioners are the main accused persons who have caused grievous injuries to the deceased and as a result of the same two persons died. Therefore, taking into consideration the gravity of the offences the petitioners' bail petition was dismissed. He has further contended that the grounds urged by the learned counsel for the petitioners are not supported by any documents and as such, the petition is liable to be dismissed.
6. I have carefully gone through the material produced along with the petition. It is an admitted fact that earlier the trial Court granted bail to accused Nos.1 to 17 and the same was challenged before this Court by 8 the complainant in Criminal Petition No.200553/2014. This Court, by its order dated 15.09.2014 had allowed the petition by canceling the bail granted to the accused-petitioners and the matter was remitted to the Sessions Court to consider the bail petition in the light of the observations made by this Court in its above order. Thereafter, petitioners approached the trial Court and the trial Court after reconsidering the case on merit, rejected the bail application. Thereafter, petitioners approached this Court in Criminal Petition No.2815/2015. The said petition was considered by this Court in detail with regard to merits of the case and by the order dated 30.07.2015, the petition filed by accused Nos.3, 10, 8, 5, 6 and 15 was rejected.
7. It is fairly submitted by the learned counsel for the petitioners that petitioners had approached the Hon'ble Supreme Court, wherein the order of this Court was confirmed. Therefore, the learned counsel for the 9 petitioners submits that the trial has not yet commenced and the delay is being caused in prosecuting the case and as the accused persons are behind the bars since long time, rights of the parties are being affected under Article 21 of the Constitution of India.
8. Keeping in view the above contention let me consider whether the petitioners have made out a case for grant of bail. It is well-established principle of law that the Court has to keep in mind the liberty and right of the parties as enumerated under Article 21 of the Constitution while deciding the case of this nature. However, at the time of adjudication of such rights the Court has to keep in mind the pros and cons of granting such liberty. No doubt, there is delay in prosecuting the case inspite of directions being issued by this Court and Apex Court, but it has to be looked into with reference to the facts of the case on hand.
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9. Even though no records are placed before this Court, the learned counsel for the petitioners contended that in the counter case, Public Prosecutor has not yet been appointed, which is causing delay in prosecuting the case. He has also contended that in the counter case, some of the accused are not appearing before the Court regularly and as such the trial has not yet begun.
10. Keeping in view the aforesaid aspect, if I analyze the facts of the case on hand, the learned counsel for the petitioners has urged that in the counter case, the Public Prosecutor has not been appointed. Even though no documents were produced to substantiate the said aspect, in some cases, the delay may occur for which neither the prosecution nor the Court or some other person can be blamed, but the system itself is going to cause some delay. If the Public Prosecutor has not been appointed even inspite of request made by the Court or 11 by the concerned Department, then under such circumstances, the delay which has been caused cannot be treated as unjustifiable. Though, the bail application filed by the accused-petitioners came to be rejected twice by this Court, again they have approached this Court delay as another ground. The way in which the petitioners have approached this Court is surreptitious method to circumstantiate the earlier orders of this Court and Apex Court. The best method which alternatively accused-petitioners could have approached is by way of writ praying for a direction to Department of Prosecution. Be that as it may, even though no such prayer is made by the petitioners, I feel it just and proper to direct the learned HCGP to take appropriate steps by writing a letter to the Department of Prosecution to see that the Public Prosecutor be appointed in the counter case within fifteen days from the date of receipt of a copy of this order and necessary instructions be issued to him to proceed with the case 12 as expeditiously as possible. If that is done, the right which is said to have been infringed to the accused is to be protected.
11. On perusal of the records though the investigating agency has completed the investigation and submitted the charge-sheet, the facts remains that the trial has not yet begun. No doubt, in DEEPAK SUBHASH CHANDRA MEHATA's case (cited supra) it has been observed that delay in trial results in incarceration for a indefinite period, violates Article 21, but the said method or principle should not be applied mechanically in all cases.
12. In DIPAK SHUBHASHCHANDRA MEHTA's case at Paras 31 and 32 it has been observed by the Apex court as under:
"31. This Court has taken the view that when there is a delay in the trial, bail 13 should be granted to the accused. (Vide Babba v. State of Maharashtra and Vivek Kumar v. State of U.P.). But the same should not be applied to all cases mechanically.
32. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; ((b) reasonable apprehension of tampering with the witness or apprehension of 14 threat to the complainant; and (c) prima facie satisfaction of the Court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted."
13. Above principle has to be kept in to view while considering the bail application. In that light, if the contention of the learned counsel is considered, it appears to be, there is no delay in conducting the trial. The facts indicate that the trial has not yet commenced as because the Public Prosecutor in a counter case has not yet been appointed. If that being the case, question of non-appearance of the accused in a counter case is hindering the trial will not hold good to consider his application for bail. After the commencement of the trial if the accused in counter case, who will be the 15 witnesses in the case of petitioners remain absent deliberately and causes delay, then the right accrues to the accused-petitioners to seek for bail. But in this case no such circumstances are forthcoming. As such the consideration of bail on that ground also fails.
14. Leave apart this if the accused, witnesse or stake holders are postponing the case without any just cause, then the Court can take recourse to such situation by exercising the power as contemplated under Section 309 of Cr.P.C. which reads as follows:
"Section 309. Power to postpone or adjourn proceedings- (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:16
Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.
(2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further than when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, 17 except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
Provided also that-
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the 18 examination-in-chief or cross-examination of the witness, as the case may be.
Explanation 1 - If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this a reasonable cause for a remand.
Explanation 2 - The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."
15. On going through the aforesaid provision it ensures a reasonable quick trial as contemplated under Article 21 of the Constitution. Speedy trial, means reasonably expeditious trial, which is an integral and essential part of the right to life and liberty. Speedy trial is a constitutional requirement, more so, when the accused has been refused to be released on bail. If the trial against an accused is not concluded within a 19 reasonable time, it amounts to violation of the right of speedy trial guaranteed under Article 21 of the Constitution, but when an accused is in custody in a case of capital punishment, then under such circumstances, the Court must be very slow in granting the bail by invoking the provisions of Article 21 of the Constitution.
16. Be that as it may, if such situation occurs in the case of the petitioners, the Court below can follow the principles laid down in a decision of the Apex Court in the case of AKIL ALIAS JAVED versus STATE (NCT OF DELHI) - reported in (2013) 7 Supreme Court Cases 125 wherein at Para Nos. 41 Point 14 it has been observed as under:
"14. If any Court finds that the day-to- day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the 20 accused or his counsel the Court can adopt any of the measures indicated in the sub-section i.e, remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the Court). Another option is, when the accused is absent and the witness is present to be examined, the Court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case)."
17 Keeping in view the various principles set out in the above decision it would indicate that in the event of non-co-operation of accused or witness with the trial or for another reason if speedy trial is being affected, then 21 the Court has to follow the procedure in the light of the observations made in the aforesaid decision of the Apex Court. But in the case on hand, no such circumstances have arisen so as to follow the procedure as laid down in the aforesaid decision. Be that as it may, the efforts made by the petitioners herein to get them released on bail are failed. Now they have come before this Court with another petition praying to release them on bail. If the said prayer of the petitioners is acceded to by this Court, it amounts to colorable exercise of the discretionary power vested with this Court. When there is no deliberate delay in the case and counter case, right of the accused would not be affected in any manner. Hence, the petitioners cannot be shown leniency that too when they are involved in a crime which is punishable with capital punishment. Looking from any angle, the petitioners have not made out any good grounds so as to release them on bail.
2218 In view of the above, this petition is liable to be dismissed and accordingly, the same is dismissed.
Sd/-
JUDGE NB/Ck/Sbs Ct: MHS