Karnataka High Court
Sri Honnurswamy S/O Nagappa vs The State Of Karnataka on 7 July, 2023
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2023:KHC-D:6849
CRL.P No. 101337 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
R
CRIMINAL PETITION NO. 101337 OF 2023
BETWEEN:
1. SRI. HONNURSWAMY S/O. NAGAPPA,
AGE: 50 YEARS, OCC: AGRICULTURE AND
MEMBER OF HALAKUNDI GRAM PANCHAYAT,
R/O: WARD NO.1, HALAKUNDI VILLAGE,
TAL: AND DIST: BALLARI -583101.
2. SRI. RAGHAVENDRA S/O. LATE RAMACHANDRA,
AGE: 45 YEARS, OCC: AGRICULTURE AND
MEMBER OF HALAKUNDI GRAM PANCHAYAT,
R/O: WARD NO.1, HALAKUNDI VILLAGE,
TAL: AND DIST: BALLARI -583101.
3. SRI. DASARA GOVINDA S/O. LATE DASARA
CHANDRASHEKAR
LAXMAN THIMAPPA, AGE: 50 YEARS,
KATTIMANI OCC: DRIVER AND EX GRAM PANCHAYAT
PRESIDENT CUM DRIVER,
R/O: WARD NO.1, HALAKUNDI VILLAGE,
TAL: AND DIST: BALLARI -583101.
Digitally signed by
CHANDRASHEKAR
LAXMAN 4. SRI. T.M.S. MAHESH S/O. THIMMAREDDY,
KATTIMANI
Date: 2023.07.14 AGE: 28 YEARS, OCC: LORRY MAINTENANCE WORK,
10:18:31 -0700 R/O: WARD NO.1, HALAKUNDI VILLAGE,
TAL: AND DIST: BALLARI -583101.
...PETITIONERS
(BY SRI. SRINAND A. PACHHAPURE, ADVOCATE)
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NC: 2023:KHC-D:6849
CRL.P No. 101337 of 2023
AND:
THE STATE OF KARNATAKA,
THROUGH BALLARI RURAL POLICE STATION,
NOW REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA DHARWAD,
BENCH AT DHARWAD -580011.
...RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CR.P.C. SEEKING TO GRANT ANTICIPATORY BAIL THE
PETITIONERS/ACUSED NO.1, 4, 7 AND 8 IN THE EVENT OF
THEIR ARREST IN CRIME NO. 137/2023 REGISTERED FOR THE
OFFENCES P/U/SEC. 143, 147, 148, 323, 324, 307, 448, 427,
504 AND 506 R/W SEC. 149 OF IPC BY THE RESPONDENT
BALLARI RURAL PS, PENIDNG ON THE FILE OF COURT OF 3RD
ADDL. CIVIL JUDGE (JR.DN.) AND JMFC, BALLARI.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Srinand A. Pachhapure, learned cou nsel for petitioners, Smt. Girija S.Hiremath, learned High Court Government Pleader for the respondent No.1-State and Shri. Sandesh Chouta, learned Senior Counsel r epresenting Shri. Avinash M. Angadi, for the complainant. Perused the records. -3-
NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023
2. The pres ent petition is filed under Section 438 of Cr.P.C. with the following prayer :-
"WHEREFORE, it is respectfully prayed before this Hon'ble Court to gra nt anticipatory bail the petitio ners/accused Nos.1, 4, 7 and 8 in the event of their arrest in Crime No.13 7/2023 registered for the offences punishab le und er Sectio n 143, 147, 148, 323, 324, 307, 448, 427, 504 and 506 read with Se ction 149 of IPC by the respond ent Ballari Rural Police Station, pending on the file of Court of I II Add itional Civil Jud ge (Jr. Dn.) and JMFC, Ballari, in the interes t of justic e. "
3. The brief facts of the case are as under:-
3.1. A complaint ca me to be lodged by Shri. C. Basavaraja with Ballari Rural Police Station on
27. 05.2023 w hich was registered in Crime No.137/2023 for the offences punishable under Sections 143, 147, 148, 323, 324, 307, 448, 427, 504 and 506 read with Secti on 149 of IPC.-4-
NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023
4. Gist of the complaint averments reveal that on 27.05.2023 at about 3.00 p.m. 15-20 persons including petitioners herein residents of Halakundi village, visited the factory of the complainant and in respect of transportation of sponge iron, picked up the quarrel. At that juncture, the altercation turned into an ugly incident whereby they started assaulting Shri.Manish Agarwal and he was also mercilessly beaten on parts of the body including the head with TMT Cutting Strip Machine. As a resul t, Shri.Ma nish Agarwal sus tained grievous injury. The quarrel was pacified and injured was shifted to hospital. On behalf of VRKP Sponge and Power Plant L.L.P. Factory, Shri. C. Basavaraj lodged the complaint with the police around 8.30 p.m. Police a fter registering the case apprehended few of the pers ons and are investigating the matter. Accused Nos.2, 3, 5 and 6 have been arrested and they are in judicial cu stody. Accused Nos.1, 4, 7 and 8 have approached this -5- NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 Court for grant of anticipatory bail after their request was rejected by l earned II Additional District and Sessions Judge, Ballari by order dated
13. 06.2023 in Criminal Miscellaneous No.406/2023.
5. Reiterating the grounds urged in the petition, Shri. Srinand A. Pachhapure, learned cou nsel for petitioners vehemently conten ded that petitioner s are innocent of the offences alleged against them and they have been fals ely impli cated in the incident inasmuch as in the complain t itself, there is a clear averment tha t 15-20 persons had come from Halakundi village. The altercation took place on a ccount of the fact that petitioner s were starving on ac count of Covid-19 and had no job and they req uested the said fa ctory personal many times for giving them job on a temporary basis to load the sponge iron into the lorries and same was negated by the factory people on number of oc ca sion. At a spur of moment, an incident has taken place which -6- NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 is trivial in nature and has been blown out of proportion and sought for grant of anticipatory bail.
6. Per contra, learned High Court Government Pleader opp oses the bail grounds vehemently. She also pointed out tha t accu sed persons have taken law into their hands and has assaulted Shri. Ma nish Agarwal on his head with deadly weapon resulting in grievous injury and petitioners are absconding from the date of offence and therefore investigati on is crippled to a considerable extent and sou ght for rejections of the bail.
7. Shri. Sandesh Chouta, lear ned Seni or Counsel representing Shri. Avin ash M. Angadi for the defacto complainant placing reliance on the judgment of th e Hon'ble Apex Court in the case of Jag je et Singh a nd Other s Vs. A shi sh Mi shra @ Monu and a nother reported in 2022 (9 ) S CC 321 , con tended that the scope of victimology is being widened day by day and in heinous offences, the complainant/victim also need to be heard at least at -7- NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 important stages of the criminal trial. As s uch, victim also needs to be heard at the time of granting of the bail necessarily.
7.1. He also pointed out that at times the prosecution may not be in a position to express the apprehension in the mind of victim as effective as the victim by himsel f. As such, taking the victim's view while deciding a bail plea of an accused in a matter of this nature would be necessary to meet the ends of justi ce and to evaluate transpa rent procedure in a adjudicating a ba il request.
8. Accordingly, Shri. Sandesh Chouta, learned Senior Counsel representing the complaina nt/victim had also been given right of aud ience thou gh, under the pr oviso of Section 24(8) of Cr.P.C. or under Section 301 of Cr.P.C., limited scope is given for the victim to assi st the prosecution. -8-
NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023
9. No doubt the wordings us ed in Section 301 of Cr.P.C. and the wordings used in pr oviso under Section 24(8) of the Cr.P.C. has g ot a l ittle differ ence. Taking note of the dictum of the Hon'ble Apex Court in the case of Jag jeet Singh ( supr a) it all boils down to a situation that it is the Court which is required to use its discretion in allowing the defacto complainant/victim in a given case not only to assist the prosecution but also participate in the proceedings as an adversary.
10. In order to appreciate the said contention of Shri. Sandesh Chouta, learned Senior Counsel for defacto complainant, it is necessary for this Court to extract Section 301 of Cr.P.C. and Section 24(8) of Cr.P.C., which reads as under;
"Secti on 301-Appearance by Public Pr osecut ors.
(1) The Pub lic Prosecutor or Assistan t Public Prosecutor in charge of a case may ap pear and plead witho ut a ny written -9- NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 au thority before any Cour t in which tha t ca se is und er inq uiry, trial or ap peal.
(2) If in any s uch case any private person ins tructs a pleader to prosecute any person in a ny Co urt, the Public Prosecutor or Assistant Public Prosecu tor in charge of the case shall condu ct the prosecution, and the pleader so instructed shall act therein u nder the d irections of the Public Pr osecu tor or Assistant Public Prosecutor, and may, with the permission of the Co urt, submit written arg uments a fter the evid ence is closed in the case.
Section 24-Public Prosec utors-
(1) t o (7) - xxxxxxxxxxxx (8)-The Central Government or the State Gov ernment may ap point, for the purposes of any case or class of cases, a person who has b een in pra ctice as an ad vocate for not less tha n ten years as a Special Public Prosecutor:
Provided that th e Court may permit the victim to en gage an advocate of his choice to assist the prosecu tion under this sub- section ."
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NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 Further the relevant paragraph in the judgment of the Hon'ble Apex Court in the case of Jag jeet Sing h (supra ) is also culled out hereunder:
"24. The ab ove sta ted enunciatio ns are not to be confl ated with certain statutory provisions, such as tho se present in the Special Acts like the Scheduled Castes and Sched uled Tribes (Prevention of Atro cities) Act, 1989, where there is a legal obligatio n to hear the victim at the time of gra nting bail. Instead, what m ust b e taken no te of is tha t:
24.1.First, the Indian juri sprudence is constantly ev olving, whereb y, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being a cknowled ged.
24.2.Second , where the victim s the mselves have come forward to participate in a criminal proceeding, they must be accord ed with an opportunity of a fair and effective hearin g. If the right to file an ap peal agai nst acquittal, is no t accompanied with the right to be heard at the time of deciding a bail application , the same may
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NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings fro m afar, especially when they may have legitimate grievances. I t is the solemn duty of a court to d eliver justice before the memo ry of an i njustice eclipses."
11. Applying the principles of law enunciated in th e case of Jagje et Singh ( supr a ) in the light of legal provisi ons under Section 301 and proviso to Section 24(8) of Cr.P.C. to the case on hand since the prosecution has expressed its apprehension in clear and categorical manner in opp osing the bail request of petitioners with vehemence, the defacto complainant can only be permitted to play the role of assisting the prosecution in effec tively opposing the bail application of petitioners/accused person s.
12. Further, there cannot be in dispute as to the principles of law enunciated in the case of Jag je et Si ng h ( supr a ) and vi ctimology is being evolved day by day and rights of the victim is being
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NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 widened day by day through various judicial pronouncement affording an opportunity for the victim to be heard in a bail request of an accused in heinous offences has practically became necessa ry.
13. In the case on h and, since the prosecution has expressed its appreh ension in a clear and categorical manner, the role that could be limited to the victim is only to assist the prosecution in opposin g to bail application of the accused/petitioners.
14. In the light of rival contentions of the parties, this Court perused the material on record meticulously.
15. Shri. Srinand A. Pachhapu re, learned cou nsel for peti tioners, contended that the incident has occurred at a spur of a momen t especially when petitioner s and others had visited the fa ctory only with a reques t of providing them an employment to eak out their livelihood and they cannot be branded
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NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 as a rate criminals. He further argued that a tr ivial incident has been blown out of proportion by the prosecution by invoking Section 307 of IPC.
12.1. He also p ointed out that none of the petitioner s/accu sed persons visited the factory premises armed with d eadly weapons which results in an invariable inference that there was no intention to take away life of Shri. Manish Agarwal or anybody from the factory.
16. However, when the altercati on turned into an ugly incident, min or injuries could have been caused to the peopl e of the fa ctory and few people from accused party have also sustained injuries. He further contended that taking note of these a sp ects of the matter, petiti oners can be enlarged on bail. But the fact remains that petitioners are not available for Investigation Agency from the date of offence till today. There are direct allegations as against first petitioner who is accused No.1 in as much as he is the one w ho assaulted Shri. Ma nish
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NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 Agarwal with a weapon on his head. Though this Court is not required to hold a mini trial to find out the merits of th e ca se at this stage, the prima facie material on record would go to show that the weapon used being a deadly weapon and part chosen being a vital part of the body namely the head of the injured, resultin g in head inju ry to Shri. Manish Agarwal, this Court is of the con sidered opinion that anticipatory bail request of first petitioner who is accused No.1 ca nnot be entertained by this Court. 17. Further, insofar as accused Nos.4, 7 and 8 are concerned their non availability with the investigation agency, has r esulted in crippling the investigation to a considerable extent. There are no specific overt acts alleged against these petitioners either.
18. Accordingly, directing these petition er Nos.2 to 4 / a ccused Nos.4, 7 and 8 to join the investigation and undergo limited period of custodial interrogation would not only meet the ends of justice
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NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 but also protect the rights of these petitioners and need of the prosecution in a n harmonious way.
19. Accordingly, following order is passed.
ORDE R The criminal petition against first petitioner(accused No.1) is hereby rejected.
The criminal petition is allowed partly in resp ec t of petitioner Nos.2 to 4 who are accused Nos.4, 7 and 8 / accus ed Nos.4, 7 and 8 subject to the following conditions:
1. Petitioner Nos.2 to 4 are dir ected to join the investi gation by appearing before the Investigation Officer on 18.07.2023 at 10.00 a.m.
2. The Investigation Officer is at liberty to take petitioner Nos.2 to 4 to custody and complete the custodial investigation if any, on the same day before 6.00 p.m. and thereafter enlarge the petitioner on bail by taking a bond in a sum of Rs.1,00,000/- (Rupees one lakh
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NC: 2023:KHC-D:6849 CRL.P No. 101337 of 2023 only) each with two sureties for the likesum.
3. Petitioner Nos .2 to 4 shall co-
operate with the investigating agency by furnishing necessary informa tion as would be required by the investigation agency.
4. Petitioner Nos.2 to 4 shall not tamper the prosecution witnesses in any manner.
5. Petitioner Nos.2 to 4 shall attend the Court regularly and appear before the Investigation agency as and wh en directed.
6. Petitioner Nos.2 to 4 shall mar k their attendance before the Investigating Officer on ev ery third Sunday between 10.00 a.m. and 2.00 p.m., till the final report is filed.
7. Petitioner Nos.2 to 4 shall not directly or indirectly tamper the prosecu tion evidence or ha mper the investigation process in any manner.
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8. Petitioner Nos.2 to 4 shall not leave the jurisdiction of Ballari District with out prior permission.
Violation of any one of the conditions would entitle the prosecution to seek for cancellation of the bail.
Ordered accordingly.
Sd/-
JUDGE SMM List No.: 1 Sl No.: 12