Karnataka High Court
Sri Aswath S vs The Central Bureau Of Investigation on 11 January, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
CRIMINAL PETITION NO.6906/2021
BETWEEN:
SRI ASWATH S.,
S/O SHIVANNAGOWDA
AGED ABOUT 35 YEARS
OCC: BUSINESS
R/O # 66, 1ST MAIN, D GROUP LAYOUT
NAGARBHAVI
BENGALURU - 560 091. ... PETITIONER
(BY SRI C.H. JADHAV, SENIOR ADVOCATE FOR
SRI CHETAN JADHAV, ADVOCATE)
AND:
THE CENTRAL BUREAU OF INVESTIGATION
BY ITS SPL. PUBLIC PROSECUTOR
OFFICE OF C.B.I., HEBBAL,
BANGALORE - 560 024. ... RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
SPL.C.C. NO.565/2021 IN CR. NO.135/2016 OF DHARWAD SUB
URBAN P.S., HUBBALLI DHARWAD FOR THE OFFENCES P/U/S
143, 147, 148, 120-B, 201, 302 R/W SECTION 149 OF IPC ON
THE FILE OF THE LXXXI ADDITINAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-82) (SPECIAL COURT EXCLUSIVELY
TO DEAL WITH CRIMINAL CASES RELATED TO ELECTED
MPs/MLAs IN THE STATE OF KARNATAKA).
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THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner who is Accused No.9 has filed the present petition seeking to be enlarged on bail in connection with his detention relating to the proceedings in Spl.C.C.No.565/2021 in Crime No.17(S)/2019 (arising out of Crime No.135/2016 of Sub-urban Police Station, Dharwad) pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) for the offences punishable under Sections 143, 147, 148, 120(B), 201,302 r/w Section 149 of IPC.
2. The facts that are relevant to this case are that, on the basis of a complaint lodged by one Mallawwa wife of deceased Yogeshgowda on 15.06.2016, Dharwad Sub-urban Police have registered a case in Crime No.135/2016 for an offence punishable under Section 302 of IPC, against unknown accused and had taken up investigation.
3. It is stated that the complaint made out that the complainant was a resident of Govanakoppa village and her -3- husband was the President of Taluk Panchayat, Dharwad. Later, he was elected as Member of Zilla Panchayat. It is further submitted that he was running a Gym at Sapthapur, Dharwad in the name of "Udaya Gym" and he used to go to Gym everyday at 7.30 a.m., and return home at 9.30 a.m. It is further submitted that the deceased had received an anonymous letter few days earlier to the incident that he would be killed in the manner in which Udayagowda was killed.
4. It is stated that on 15.06.2016, the deceased left the house at 7.20 a.m., stating that he would go to Gym. At about 8.30 a.m., when the family members were watching Suvarna News, they noticed a news item stating that complainant's husband was murdered in Dharwad and immediately they proceeded to the place of incident. The complainant is stated to have noticed the dead body of her husband with several injuries on the head, neck and chest lying in a pool of blood. Immediately, the police were requested to take necessary action.
5. It is further submitted that investigation was commenced by Dharwad Police and that statements of eyewitnesses were recorded and accused nos.1 to 6 have been -4- arrested. There was recovery of weapons used for commission of the offence. After completion of investigation, charge sheet was filed.
6. After committal proceedings, case was registered as S.C.No.50/2017 on the file of IV Addl. District & Sessions Judge, Dharwad. The trial was commenced, the witnesses were examined and 313 statements of the accused were also recorded. It is submitted that when the matter was listed for final arguments, a request was made for entrusting the investigation to the Central Bureau of Investigation ("CBI" for short).
7. It is made out from the statement of objections filed by the respondents that during the pendency of proceedings, Smt.Thungamma (mother of the deceased) and Sri.Gurunatha Goudar (brother of the deceased) approached this court seeking to hand over the investigation to CBI in W.P.Nos.58183-184/2017. It is submitted that the said writ petitions came to be rejected and liberty was reserved to move an application under Section 319 of Cr.P.C. -5-
8. It is however made out that fresh effort was made for entrustment of the investigation to the Central Bureau of Investigation and that Sri Gurunath Goudar had asserted that State Police have not investigated the case properly as vital evidence was not considered. It was specifically asserted that there was one more car that was involved in the incident and about 60 CC T.V. footages around the place of incident had not been collected.
9. It is further made out that the said Gurunath Goudar had specifically asserted that the police officers of the rank of Dy.SP and a senior politician were involved in the said case and the said Gurunatha Goudar had submitted a request with the State Government to transfer the case to CBI categorically mentioning the involvement of police officers in the said case.
10. On the basis of the said request, the Government of Karnataka accorded consent under Section 6 of the Delhi Special Police Establishment Act on 06.09.2019 and accordingly, the CBI was permitted to conduct further investigation in Crime No.135/2016 registered by the Dharwad Sub-urban Police Station. On receipt of order of sanction, the respondent-CBI filed -6- a memo before the learned Principal Civil Judge (Jr.Dn.) & JMFC., Dharwad under Section 173 (8) of Cr.P.C., intimating about the second respondent undertaking further investigation in the said case. It is made out that contemporaneously in accordance with the provisions of the CBI Manual, the respondent for administrative and statistical purposes had re-registered FIR No.135/2016 dated 15.06.2016 of Dharwad Sub-urban Police Station as RC 17(S)/2019 dated 24.09.2019. On registration, further investigation came to be commenced by the respondent and it is stated that the respondent has completed investigation and filed three supplementary charge sheets.
11. It is to be noticed that the application filed under Section 439 Cr.P.C., by the present petitioner i.e., accused no.9 before the LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) came to be rejected by order dated 07.08.2021. Thereafter, the present petition has been filed.
12. Sri. C.H.Jadhav, learned Senior Counsel appearing on behalf of the petitioner and Sri. P.Prasanna Kumar, learned -7- Special Public Prosecutor appearing on behalf of the respondent - CBI have advanced arguments.
13. The learned Senior Counsel appearing for the petitioner submits that the aspect of change in the political establishment needs to be kept in mind as the order for further investigation and entrustment of investigation to CBI was ordered only after the BJP Government came to power and only thereafter the matter was entrusted to CBI for further investigation on 06.09.2019.
14. It is further submitted that the other important factor that needs to be kept in mind is that the validity of entrustment of proceedings to the CBI was a subject matter of challenge in various proceedings and that the order dated 06.09.2019 passed by the Government of Karnataka according sanction to CBI to conduct further investigation with respect to Crime No.135/2016 which was originally registered with the Dharwad Sub-urban Police Station has been challenged. It is submitted that challenge was also made out as regards to FIR dated 24.09.2019 and various writ petitions filed by some of the accused were clubbed together viz., W.P.No.51012/2019 which was clubbed -8- along with W.P.Nos.52575/2019, 15828/2021, 16081/2021 and 16088/2021. It was pointed out that in W.P.No.51012/2019, interim order of stay was granted and finally the said order came to be challenged by the CBI before the Apex Court in SLP (Criminal) No.1348/2020 in the case of Central Bureau of Investigation v. Basavaraj Shivappa Muttagi & Another. The Apex court by its order dated 11.08.2021 disposed off SLP (Crl) No.1348/2020 as well as SLP(Crl) No.2534/2020 and W.P.(Crl) No.252/2021 and W.P.(Crl) No.271/2021 and SLP (Crl) No.4739/2021. By virtue of the said orders, the Apex Court directed this Court to take up W.P.No.51012/2019 and dispose off the same expeditiously preferably within two months. The Chief Justice of this court was requested to assign the matter to a Division Bench of this court, if the relevant Rules so permit.
15. Pursuant to the orders of the Apex Court, the proceedings in W.P.No.51012/2019 and connected matters was taken up and finally disposed off by order dated 16.10.2021 whereby this court has dismissed the writ petitions filed by accused nos.1, 5, 15, 16 and 21 and directed the trial court to expedite trial in Spl.Case No.565/2021.
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16. The learned Senior Counsel would submit that the fact that validity of the State according sanction to CBI to further investigate the matter having been challenged and the order in W.P.No.51012/2019 and connected matters are at present the subject matter of challenge before the Apex Court which aspect needs to be kept in mind while deciding the matter.
17. It is pointed out by the learned Senior Counsel appearing on behalf of the petitioner that at the first instance, the statements of eyewitnesses under Section 161 have been recorded during the months of June and July 2016 while the Dharwad Sub-urban Police were investigating. The copies of the said statements have been filed along with the memo. It is further pointed out that 161 statements recorded would point out to the involvement of accused nos.1 to 6 and subsequently the said version of the said witnesses was turned and the statements have been recorded with much delay on 01.11.2019 after a lapse of 4½ years from the incident and two months subsequent to the entrustment to the CBI which needs to be viewed appropriately.
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18. It is further submitted that the very witnesses whose statements were recorded in 2016 have now come up with a different version and have stated that accused nos.1 to 6 are parties to the conspiracy while accused nos.7 to 14 are the main accused.
19. It is further pointed out that additional Charge sheets have been filed by the CBI. The charge sheet dated 20.05.2020 (charge sheet No.2) was filed implicating accused nos.7 to 14. It is further submitted that the CBI filed another supplementary charge sheet dated 30.01.2021 implicating accused nos.15 to 17. Another charge sheet came to be filed on 15.09.2021 implicating accused nos.18, 19, 20, 21 as against the Investigating Officer, Assistant Commissioner of Police and Assistant Investigating Officer who had investigated the case at the first instance.
20. The learned Senior Counsel would point out that accused nos.15 to 21 are enlarged on bail and that one of the main allegations being accused no.15 being the main conspirator had also been enlarged on bail which aspect is to be taken note of.
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21. It is further submitted that accused no.9 has been in custody since 20.02.2020 and investigation is now completed. It is submitted that accused no.9 is a businessman residing in Bengaluru having deep roots in the society and his role as made out is that he is the friend of accused no.1 who had procured the other accused.
22. It is pointed out by the learned Senior Counsel appearing for the petitioner that CCTV footage was initially seized by the police and the said footage was referred for expert opinion during the process of investigation at the first instance.
23. It is pointed out that 161 statements of the very same witnesses who had initially stated that accused nos.1 to 6 are the main assailants has been given complete go bye and fresh statements have been recorded after much delay which are completely contradictory to the earlier stand of the witnesses.
24. It is pointed out that looking into the position of the petitioner, the apprehension of tampering would be weak consideration for denial of bail as regards the petitioner as it is apparent that the only person with enormous influence who
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could tamper with evidence was accused no.15, who now has been enlarged on bail by virtue of the order of the Apex Court.
25. It is contended that in light of very validity of sanction by the Government of Karnataka to entrust investigation to CBI being in question wherein various contentions have been urged relating to entrustment for further investigation to CBI, if the stand of the petitioner in the case which is now pending before the Apex Court is upheld, the entirety of investigation commenced by CBI culminating in filing of additional charge sheet would be set aside and if that were to be so, the material relied on by the CBI while opposing grant of bail namely, 161 statements of the witnesses and other materials obtained during the investigation by the CBI including the CCTV footages heavily relied on by the prosecution would also go.
Accordingly, it is submitted that in light of such contradictions in the material available with the prosecution which the CBI has relied upon to make out a case for denial of bail to the petitioner i.e., accused no.9, opposition to grant of bail is on weak footing. It is submitted that considering the nature of proceedings i.e., grant of bail, all aspects as pointed
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out above would have a bearing and the contentions as made out above relating to the statement of witnesses recorded once again in 2019 after much delay and additional material obtained by the investigating agency i.e., CBI including CCTV footages are evidences that are to be tested during trial.
26. The learned Senior Counsel has relied on the judgment of the Apex Court in the case of Ganesh Bhavan Patel and Another v. State of Maharashtra reported in AIR 1979 SC 135 as regards delay in recording statements and its effect and has relied on the observation in Para 15 and 17.
27. It is contended that bail is the rule and refusal would be restriction of liberty and is an exception and reliance is placed on the observation of the Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40.
28. Reliance is also placed on the case of Harinath and Another v. State of U.P. reported in (1988) 1 SCC 14 Para 16 to contend that delay in holding Test Identification Parade would result in no value being attached to such exercise.
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29. It is contended that in the present case, holding of Test Identification Parade after a delay of about three months though the accused was arrested on 27.02.2020 without any explanation for such delay would cast shadow on the Test Identification Parade conducted by the CBI.
30. Sri P.Prasanna Kumar, learned Special Public Prosecutor appearing for the respondent has submitted that the petition requires to be rejected taking note of the nature of offences involved. As regards the contention of the petitioner that the matter was referred for further investigation to the CBI at a very belated stage, it is submitted that there is no bar in conducting further investigation at any stage of trial. It is further submitted that the investigation by CBI would reveal that the witnesses were influenced to turn hostile and eye-witnesses were threatened by the accused persons.
31. It is further submitted that the investigation also revealed the involvement of additional vehicles and other accused persons, all of which circumstances led to the matter being entrusted for further investigation to CBI.
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32. It is further pointed out that as per the last additional charge sheet filed, there were serious allegations made out as against the Investigating Officers relating to tampering of evidence and accordingly, as the investigation appears to have been conducted in a mala fide manner at the first instance, grounds were made out for entrusting the matter for further investigation to CBI.
33. It is further submitted that the investigation by CBI had revealed that the petitioner was one of the assailants who had committed murder of the deceased and that the petitioner alongwith other accused persons had assisted accused no.1 in committing the murder of deceased. It is submitted that the petitioner alongwith accused No.8 had come to Dharwad to commit the murder of deceased. As per the investigation report, on 14.06.2016 the accused nos.7 and 9 armed with weapons and wearing red jacket had arrived at Uday Gym on a Hero Honda Splendor motor cycle bearing No.KA 25 EA 6230 at 7.23 a.m. It is submitted that accused Nos.7 to 9 and 13 had moved around the Gym waiting for the deceased to arrive and on the first occasion as they could not accomplish the task, they returned
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back to Dharwad and made a fresh effort to commit the murder of deceased on the next date, i.e. on 15.06.2016.
34. It is submitted that as per the report, accused nos.7 and 9 had reached Uday Gym around 6.46 a.m. on 15.06.2016 on a Hero Honda Splendor motorcycle referred to above and were also equipped with weapons. It is further submitted that their investigation revealed that the petitioner-accused No.9 had sat on a wall at the Gym holding the newspaper to cover himself and accused no.7 while waiting for the arrival of deceased. It is further submitted that in the final assault, the petitioner had attacked the deceased with 'long mattchu (machete)' and deceased fell down, after which the other accused had attacked the deceased and the C.C. T.V. footage obtained was also the supporting material.
35. It is contended that the allegation that investigation conducted was out of vengeance and had political motive is a bald allegation and not based on true facts. It is submitted that, but for the investigation being entrusted to CBI, the actual accused would have got away and other accused persons who
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had been arrayed as accused to shield the actual accused would have been convicted.
36. It is contended that grant of bail to accused no.15 cannot come to the aid of the petitioner, as the question of grant of bail on the principle of parity would not be applicable insofar as bail being granted to accused no.15, as the role ascribed to accused no.15 was entirely different and in fact, accused no.15 was the chief conspirator in the alleged crime and whose role is different from that of the petitioner, who was not only part of the conspiracy, but also had assaulted the deceased with 'long mattchu (machete).'
37. As regards the delay in recording the statement of witnesses, it is submitted that the investigation was entrusted to CBI on 06.09.2019 and soon thereafter the proceedings have progressed, but in light of interim stay granted by this Court on 21.11.2019 in W.P.No.51012/2019, which came to be lifted later, there was some delay in the further investigation including recording of statement of witnesses.
38. It is contended that the Test Identification Parade was carried out only after C.C. T.V. footage was recovered during
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further investigation as the relevant C.C. T.V. footage was not seized at the first instance. It is contended that the petitioner has been identified during the Test Identification Parade and that the witnesses in their statement recorded under Section 161 of Cr.P.C. after entrustment of investigation to the C.B.I., have all identified the petitioner and the role that he has played in the commission of offences, including the assault of deceased. It is contended that the petitioner-accused no.9 had been shielded, and but for entrustment of investigation to C.B.I., he would have got away.
39. It is also further submitted that investigation by Dharwad Sub Urban Police was done with a mala fide intention to shield the actual accused persons and the witnesses whose first version in the statement recorded under Section 161 of Cr.P.C. was under undue influence and it is only after CBI stepping into the investigation, the true version has come out.
40. Learned Special Public Prosecutor appearing for the respondent has relied on the judgment of Apex Court in the case of Gobarbhai Naranbhai Singala v. State of Gujarat reported in (2008) 3 SCC 775 to contend that the mere fact that
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petitioner is in jail for a substantial length of time will not be a relevant circumstance. He has placed reliance on para-22 of the said judgment, which reads as follows:-
"22. The third reason given by the High Court for grant of bail, that the respondent had been in jail for the last more than 2 years, is equally untenable in view of the observations made by this Court in State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] : (SCC p. 32, para 19) "19. ... '14. ... the condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for
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enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.' " [Ed.: As observed in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 at pp. 536-37, para 14 :
2004 SCC (Cri) 1977.] (underlining [Ed.: Herein italicised.] is ours)"
41. It is submitted that the enlargement of petitioner on bail would result in threat to fair trial in light of possibilities of intimidation of witnesses and in this regard, reliance is placed on the decision of Apex Court in the case of State of Bihar v. Rajballav Prasad, alias Raj Ballav Prasad Yadav alias Raj Ballab Prasad Yadav reported in (2017) 2 SCC 178.
42. As regards to the general principle governing grant of bail, reliance is placed on the judgment of Apex Court in the case of Anil Kumar Yadav v. State (NCT of Delhi) and Another reported in (2018) 12 SCC 129 and attention is drawn to the observations made at paras-17 and 18 and submits that the factors enumerated in para-18 relating to reasonable ground to believe that the accused has committed the offence, nature and gravity of the charge, reasonable apprehension of the witnesses
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being tampered with and danger, of course, of justice being thwarted by grant of bail being relevant considerations and applying the same principles, bail is to be deied.
43. The respondent-CBI has also relied on the judgment of Apex Court in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) and Another reported in (2021) 6 SCC 230, relating to the aspect of parity and submits that no grounds for parity are made out in the present case for release of the petitioner. Merely on the ground that some of the other accused including accused no.15 has been enlarged on bail, would not be a sufficient circumstance as role of accused no.15 is entirely different.
44. The point for consideration is as to "whether grounds are made out for enlarging the petitioner on bail?"
At the outset, it must be noticed that Dharwad Sub Urban Police have registered a case in Crime No.135/2016 for the offence punishable under Section 302 of IPC against unknown accused persons and had taken up investigation. It is also borne out from the records that Dharwad Sub Urban Police had completed the investigation and filed a final report after
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recording the statement of witnesses whereby the imputation was made as against accused nos.1 to 6 and there was also recovery of weapons stated to have been used in the commission of offence.
45. It is also borne out from the records that the trial at first instance had progressed to an advanced stage insofar as witnesses were examined and had turned hostile and the statements of accused persons under Section 313 of Cr.P.C. were also recorded. As per the submission of learned Senior Counsel appearing on behalf of the petitioner, in fact, the matter was at the stage of arguments.
46. It is in fact pointed out that at the instance of mother and brother of deceased, the writ petition filed seeking to hand over the investigation to C.B.I. in W.P.Nos.58183-58184/2017 had been rejected and that liberty was reserved to move an application under Section 319 of Cr.P.C.
47. It is pointed that for the reasons best known, Sri Gurunath Goudar had not appeared despite summons being sent and finally as a result of several developments, sanction was accorded permitting conducting of further investigation in Crime
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No.135/2016 to be made over to CBI as per the order dated 06.09.2019.
48. It is to be noticed that the said aspect of handing over further investigation to CBI has been a subject matter of legal challenge and that as per the order dated 16.10.2021 passed in W.P.No.51012/2019 and connected petitions, the entrustment of investigation was upheld. However, it is submitted that same is a matter till to be considered before the Apex Court and is still pending adjudication, which assertion has not been disputed by the respondents.
49. Considering the nature of present proceedings, the facts as made out including the validity of entrustment of investigation to the CBI not yet being finally adjudicated upon would have a bearing on the present proceedings and needs to be taken note of appropriately. In the event, if the entrustment of further investigation to CBI is set aside, what would remain as material on record would be the statement of witnesses, charge sheet and other material made out by Dharwad Sub Urban Police, all of which admittedly point out to the involvement of only accused nos.1 to 6. Even if it is construed that additional
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evidence gathered in further investigation is also to be taken note of, clearly, the evidence collected at the first instance including the recording of statement of witnesses and charge sheet filed and deposition before the Court, all of which constitute part of Court proceedings which may have to be re- appreciated in light of inconsistent stand taken by the same witnesses at a subsequent point of time i.e. after about four years of the first recording of statement of the same witnesses. The appreciation of such material is a matter to be left for trial and in light of such material, the case of the petitioner to be enlarged on bail will have to be appropriately considered.
50. The very same witnesses who in 2016 had made statements regarding the imputation of commission of crime as regards accused no.6 have turned around in 2019. As to whether the evidence let in at the first instance before the Court was under undue influence resulting in tampering of evidence, is a matter to be demonstrated in trial.
51. It ought to be noticed that admittedly the petitioner is a resident of Bengaluru. Insofar as the threat perception of involvement of the petitioner, it must be noted that accused
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no.15 even as per the stand of respondent - CBI was the most influential person with political background and was in a position to tamper the witnesses. The said accused no.15 has been enlarged on bail as per the order of Apex Court in S.L.P. No.807/2021 dated 11.08.2021. In light of enlargement of accused no.15 on bail, the plea of the petitioner that he too could be enlarged on bail while imposing sufficient conditions to prevent him from tampering with the witnesses, is a matter that requires consideration.
52. Learned Senior Counsel appearing on behalf of the petitioner submits that any condition imposed to prevent the petitioner from tampering with the witnesses would be abided by him with all seriousness.
53. It is to be noticed that the petitioner is in custody since 27.02.2020. Admittedly, the investigation is complete and three charge sheets have been filed by the respondent - CBI. No doubt, the allegations made out by C.B.I. and the assertion of C.B.I. while placing reliance on the contents of final reports filed which if accepted, would point out to the role of Investigating Officers also having colluded with the accused persons and thus
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derailing the investigation, which is a matter of serious concern, but that by itself would not justify the continuance of petitioner in the custody.
54. The gravity of offence and the imputation of petitioner by itself will not be the sole factor while taking note of the plea of enlargement of the petitioner on bail. The gravity of imputation is to be taken note of alongwith the other factors as well.
55. The principles governing the grant of bail have been discussed in detail while disposing off Crl.A.No.251/2021 and connected matters on 22.06.2021 wherein, this Court has considered all the relevant factors to be taken note of while granting bail after referring to the various judgments of the Apex Court.
56. It is clear that the gravity of offence though mainly may be the pre-eminent consideration, it cannot be to the absolute exclusion of other considerations, i.e., the principle that could also be observed in para-43 of the judgment of Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40. It must be noted
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that the proceedings relating to grant of bail is an exercise whereby the balance must be stuck between public interest to ensure that the accused persons are brought to book while also ensuring that liberty of an individual is protected. It is settled position that the proceedings relating to grant of bail are not to be treated being punitive. The substantiation of material filed in support of charge sheet, are the matters to be tested during trial.
57. In the case of Arnab Manoranjan Goswami v. State of Maharashtra and Others reported in (2021) 2 SCC 427 the Apex Court has considered the scope of power while granting bail and has laid down the following guidelines in para- 64 of its judgment, which reads as follows:
"64. While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarised as follows:
64.1. The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction.
64.2. Whether there exists a reasonable apprehension of the accused tampering with the
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witnesses or being a threat to the complainant or the witnesses.
64.3. The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice.
64.4. The antecedents of and circumstances which are peculiar to the accused.
64.5. Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR.
64.6. The significant interests of the public or the State and other similar considerations."
58. While looking through all the guidelines relating to grant of bail, the peculiarity of the present case is something that needs to be taken note of. It needs to be kept in mind that the trial at first instance had reached advanced stage, i.e. the statement of witnesses had been recorded, charge sheet had been filed and witnesses were examined in Court.
59. The reasons for the witnesses turning hostile and had not supported the case of prosecution, is a matter that needs to be re-visited during trial on the basis of fresh investigation report submitted by the CBI, including the statement recorded under
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Section 161 of Cr.P.C. which point out to the involvement of petitioner in the alleged offence.
60. The fact of time gap between the recording of statement of witnesses under Section 161 of Cr.P.C. at the first instance in the year 2016 and recording of statement of witnesses in the year 2019 after CBI has taken over the investigation which reflects the divergent stand of the same witnesses, is something that cannot be wished away. What needs to be taken note of insofar as the present proceedings are concerned is the assertion of respondent-CBI that investigation at the first instance was vitiated by the role played by the Investigating Officers and other Police Officers who have now been charge sheeted as accused persons by virtue of additional charge sheet filed by the CBI, which are again matters that need to be taken note of during trial.
61. Though learned Senior Counsel appearing on behalf of the petitioner has contended that there is delay in conducting the Test Identification Parade, which contention has been stoutly objected to by learned counsel appearing for the respondent - CBI who contended that the Test Identification Parade was
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carried out only after retrieval of C.C. T.V. footage after fresh investigation is also a matter that has to be appreciated and tested during trial.
62. Obviously, this Court at this stage is not deciding as regards to the culpability of petitioner, but taking note that trial is yet to commence and that the petitioner being resident of Bengaluru the probable possible role in tampering the witnesses could be taken care of by imposing stringent conditions, including that the petitioner is not to visit the City of Dharwad till trial is completed apart from other appropriate conditions.
63. Insofar as the grievousness of the allegations made out, those are matters to be established during trial and it must be noticed that the allegations made are not only against the petitioner, but also against the other accused and the proof of such imputation is to be decided during trial. Even otherwise, the grievousness of the offence cannot be to the exclusion of other factors. In the present case, the investigation is complete, the supplementary charge sheets have been filed by the CBI. The trial is yet to commence.
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64. Before the trial Court the material now available are; the statements of witness under Section 161 of Cr.P.C. (which however can be used for limited purpose) which were recorded in 2016 pointing out to the role of accused nos.1 to 6 having committed the offences, and the charge sheet initially filed on the same lines. The evidence recorded before the trial Court prior to investigation being entrusted to the CBI wherein the witnesses have not supported the case of the prosecution, the statement of witnesses under Section 161 of Cr.P.C. of the same witnesses recorded in 2019 where they have taken a divergent stand and point out to the involvement of the other accused with a different version regarding the manner of commission of crime. Apparently this material is starkly contradictory and which of the versions would prevail is a matter to be established during trial.
65. The material on hand including the pending adjudication regarding validity of the proceedings relating to entrustment of investigation (it is submitted that the validity of the order upholding entrustment of investigation to CBI is pending consideration before the Apex Court) are aspects would be of relevance in the present proceedings and would have the effect of downscaling the case of the prosecution from being
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unimpeachable. This would then cast doubts as regards the prima facie case of the prosecution. Such of the doubts are to be resolved during trial and are sufficient for a favourable consideration of the present petition in light of the other factors as well.
66. The accused no.15 against whom grave allegations have been made and who is stated to be a Former Minister has been enlarged on bail with stringent conditions. The said accused is a former Minister. As compared to accused no.15, the tampering with the witnesses is at a lesser probability. However, the possible threat could be taken care of by imposing adequate conditions including those imposed while granting bail to accused no.15.
67. The reliance on C.C T.V. footage stated to have been recovered during fresh investigation by CBI even if accepted is electronic evidence that is stated to have been salvaged after may years and quality of such evidence is to be tested during trial. Such evidence is also stated to have been utilised during Test Identification Parade. For the present proceedings, it can
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be stated that such evidence is to be construed as not being unimpeachable.
There is no quarrel as regards the principles enunciated in the judgments relied upon by both the sides.
68. This Court is not enlarging the accused on the sole ground that he has been in custody and trial has not yet commenced. Accordingly, the observations of the Apex Court made in the case of Gobarbhai Naranbhai Singala v. State of Gujarat reported in (2008) 3 SCC 775 will not come in the way of consideration of the bail petition.
69. In the facts of the said case, bail was granted only on the ground that the accused was in custody since two years, that trial had not commenced and that there was no violation of temporary bail order and the accused had not misused the liberty granted to him. It is on such fact that the order granting bail by the High Court was set aside while observing that the Court had ignored the general principles for grant of bail in a heinous crime of commission of murder in which the sentence, if convicted, is death or life imprisonment.
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70. As stated earlier, grant of bail in the present case is on other considerations as well and not merely on the ground that the trial is yet to commence and that the accused has been in custody for a considerable period of time.
71. Insofar as reliance placed on the judgment of Apex Court in the case of Raj Ballav Prasad (supra) which laid down the principle that where there is possibility of tampering of evidence, if the accused were to be released on bail then public interest is to take precedence over individual liberty, is a principle that cannot be disputed. The judgment in the case of Anil Kumar Yadav (supra) was also relied upon as regards the aspect of impact of release of accused on material witnesses to depose without fear.
72. In the present case, it must be noticed that the prosecution had made out a case against accused no.15, who however has subsequently been enlarged on bail. There were serious allegations against accused no.15 being an influential person as he was former Minister and could derail fair trial by tampering with the witnesses as was made out by the prosecution. However, the Apex Court has enlarged him on bail
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after imposing stringent conditions including that the accused will not enter the District of Dharwad till further orders are to be passed. In the present case also, as regards the petitioner- accused no.9, similar conditions could be imposed and this Court has specifically considered as per the discussion at para-50 supra regarding threat perception of the petitioner, if he is enlarged on bail.
73. The order of the trial Court rejecting the petition seeking to be enlarged on bail in Crl.Misc.4267/2021 when perused would reveal that the trial Court has taken note of the charge sheet filed by the C.B.I. and concluded that there was prima facie material to show involvement of accused no.9 in the execution of murder of Yogesh Goudar. The trial Court has referred to the seized C.C T.V. footage and observed that the said C.C T.V. footage cannot be discarded at the stage of considering the bail. The trial Court has also observed that mere completion of investigation and filing of charge sheet cannot be a ground to allow the bail petition and if the Court enlarges the petitioner on bail, even after the prosecution establishes prima facie case, it would convey wrong message to the society.
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74. As noted above, the trial Court did not look into the inherent contradictions in the material placed by the Investigating Agency by way of final report in 2016 in the first instance and the material placed in 2019 taking a totally divergent view as regards the involvement of the accused.
75. In light of the above discussion, case is made out for enlarging the petitioner on bail, subject to conditions.
In the result, the bail petition filed by the petitioner/accused No.9 under Section 439 of Cr.P.C. is allowed and the petitioner is enlarged on bail in Spl.C.C.No.565/2021 in Crime No.17(S)/2019-CBI-BLR (arising out of Crime No.135/2016 of Sub-urban Police Station, Dharwad) pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) for the offences punishable under Sections 143, 147, 148, 120(B), 201,302 r/w Section 149 of IPC, subject to the following conditions:-
i. The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh
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only) with two sureties for the likesum before the concerned court.
ii. The petitioner shall not in any way impede the conduct and proceedings of the investigation and the trial.
iii. The petitioner shall not directly or indirectly get in touch with any of the witnesses nor shall he try to influence any such witnesses.
iv. The petitioner shall not visit the City of Dharwad till trial is completed.
v. The petitioner shall mark his presence in the office of ACP CBI, Unit, Bengaluru twice a week.
vi. Any infraction or violation of the above conditions shall entail in cancellation of bail. Registry to communicate the operative portion of the order to the jurisdictional trial Court, i.e. LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively
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to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) forthwith.
Sd/-
JUDGE VGR/Np