Supreme Court - Daily Orders
Vinod Malali vs The State Of Karnataka on 3 February, 2022
Bench: Chief Justice, A.S. Bopanna, Hima Kohli
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.201 OF 2022
(Arising out of S.L.P. (Crl) No.9180 of 2021)
Vinod Malali .… Appellant(s)
Versus
The State of Karnataka& Anr. …. Respondent(s)
ORDER
1. Leave granted.
2. The appellant is before this Court, in this appeal, assailing the order dated 05.04.2021 passed by the High Court of Karnataka, Dharwad Bench in Criminal Petition No.100572 of 2021. Through the said order, the learned Single Judge has allowed the petition filed under Section 439 of Criminal Procedure Code (for short ‘Cr.P.C.’). Thereby, the respondent No.2 herein, who is accused No.3 in Crime No.207 of 2020 registered for an offence punishable Signature Not Verified under Section 302, 307 and 109 read with section 34 of IPC is Digitally signed by SATISH KUMAR YADAV Date: 2022.02.10 13:53:48 IST Reason: ordered to be enlarged on bail.
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3. The appellant herein is the injured complainant, who however was not a party to the petition before the High Court. This Court, in that view, by the order dated 25.11.2021 had allowed the application and accorded permission to file the Special Leave Petition against the order impugned.
4. The brief facts are that the deceased Triveni had married the appellant herein. The deceased was from the ‘Maratha’ community, while the appellant who married her belong to the ‘Reddy’ community. Accused No.1 is the brother and accused No.3 (Respondent No.2) is the uncle of the deceasedTriveni. Accused No.1 and accused No.3 being from the same family, were allegedly upset with this marriage, since according to them, their ‘family honour’ was affected and they felt humiliated. Hence, they hatched a plot to eliminate the deceasedTriveni and the appellant. In this regard, they allegedly contacted accused No.4 who is the neighbouring landowner of the accused No.1, who introduced accused No.2 to them. Accused No.2 is said to have agreed to eliminate the deceased and appellant herein on receiving a ‘supaari’ of Rs.2,00,000/ (Rupees Two Lakhs). Accused No.4 is stated to have agreed to receive Rs.50,000/ as his share in the ‘supaari’ amount after execution of the work.
5. In furtherance to the plot hatched by the accused, the same 3 is stated to have been executed on 17.10.2020, when Triveni was killed and the appellant suffered grievous injuries, but survived. On information being received by the Karatagi Police, further action was initiated and the accused Nos. 1,3 and 4 were apprehended. Accused No.2 however, is at large.
6. Respondent No.2 (accused No.3) was arrested on 20.10.2020. At the first instance, he filed an application before the Court of the 1st Additional District and Sessions Judge, Koppal (sitting at Gangavathi) seeking bail. The learned Sessions Judge on adverting in detail to the case put forth on behalf of the accused Nos. 3 and 4, through the common order dated 09.02.2021, dismissed the petitions of which, petition bearing Criminal Miscellaneous No.683 of 2020 pertained to the respondent No.2. Subsequent thereto, the appellant filed the subject application before the High Court in Criminal Petition No.100572 of 2021. The learned Single Judge noted that the only allegation made against the respondent No.2 herein (accused No.3) is that he instigated the accused by providing his motorcycle to be used by the accused No.1 in commission of the offence. Since accused No.4 who was also charged in such a manner of not actually taking part in committing the crime had been granted bail, respondent No.2 herein (accused No.3) was considered to be 4 on par, granted the benefit of parity and was therefore ordered to be enlarged on bail. The appellant being aggrieved by the said order, is assailing the same.
7. Heard Mr. Anil V. Katarki, learned counsel appearing for the appellants, Mr. V.N. Raghupathy, learned counsel for the State and Mr. Basava Prabhu Patil, learned senior counsel on behalf of Mr. Chinmay Deshpande, learned counsel for the respondent No.2 (accused No.3) and perused the appeal papers.
8. Learned counsel for the appellant has referred to the manner in which the incident had occurred, to which the appellant is an eye witness being the injured survivor and therefore his version implicating all the four accused is clear based on the manner in which the events have unfolded. It is contended that the crime has been committed with the common intention, inasmuch as respondent No.2 (accused No.3) being aware of the criminal intent of the accused Nos. 1 and 2, provided his motorcycle to enable them to commit the crime. As such it cannot be argued that the respondent No.2 (accused No.3) had not taken part in the crime and the allegation levelled against him is only of providing his motorcycle. He therefore contends that the accused Nos. 3 and 4 are also equally complicit. He points out that this Court has already allowed Criminal Appeal No.1120 of 2021 5 (arising out of SLP (Crl.) 3426 of 2021) and having cancelled the bail granted to the accused No.4, also reserved liberty to the appellant to seek cancellation of bail of the coaccused. Hence, he submits that the instant appeal is to be allowed. Learned counsel for the State has also supported the case of the appellant herein in seeking to set aside the order granting bail to the respondent No.2.
9. Mr. Basava Prabhu Patil, learned senior counsel would on the other hand strenuously contended that the only charge against the respondent No.2 (accused No.3) is that he had provided his motorcycle. He referred to the order of the High Court and contended that the learned Single Judge had taken note of the fact that the only allegation against the respondent No.2 in the chargesheet is that he instigated the accused by providing his motorcycle for used by the accused No.1. It is thus contended that the accused Nos. 3 had not actually participated in the commission of the crime, nor was he present at the place of the incident and therefore, the bail granted to him is justified and does not call for interference.
10. Having heard the learned counsel for the parties, a perusal of the order dated 29.09.2021 passed in Criminal Appeal No.1120 of 2021, at the threshold indicates that the order to which, two of us (Hon’ble CJI and Justice Hima Kohli) were members on the 6 Bench relates to the accused No.4 in the very same criminal proceedings. This Court has adverted to all facts relating to the instant crime and the manner in which the incident had taken place. It was also noted that the High Court while ordering to enlarge accused No.4 on bail, in the petition which had arisen for consideration before it, had erred in not considering the fact that the appellant being the eye witness to the commission of the crime, is facing a threat to his life and release of the accused on bail has aggravated the said threat. In addition, this Court had observed that in the meanwhile, if the coaccused of the respondent No.2 (accused No.4) to that case have also been released on bail, the appellant or the prosecution shall be at liberty to seek cancellation of their bail in accordance with law.
11. In the background of the said observations, a perusal of the facts would disclose that the respondent No.2 in the said case (accused No.4) was also not alleged to have been at the spot where the incident took place or having directly committed the murder but his role is of having introduced accused No.2 to the accused No.1, yet keeping in view the nature of offence, this Court had set aside the order granting him. In that circumstance, if the role of the respondent No.2 herein is taken note of, apart from providing his motorcycle to the accused No.1, the respondent No.2 (accused 7 No.3) is also a member of the family, being an uncle of the accused No.1 and the deceased, Triveni. The entire allegation is of the murder being committed to save the ‘honour’ of the family. Even otherwise, prima facie, the role already alleged is of aiding the commission of the crime by the accused No.1 by providing his motorcycle. The appellant herein is the injured witness who has survived the assault. The charge against the respondent No.2 (accused No.3) is also under Section 302, 307, 109 read with section 34 of IPC. Since Section 34 of IPC has been invoked, the role of each accused cannot be distinguished at this stage until the evidence is available on record. Further, when the learned Single Judge has considered grant of bail on parity with the accused No.4 and the said order has been set aside by this Court, the benefit of parity will vanish and would not be available to be extended to the accused No.3. In any event, the bail granted at this stage in a serious offense of the present nature is not sustainable and for the said reason too, the order is liable to be set aside.
12. Accordingly, the order dated 05.04.2021 passed in Criminal Petition No.100572 of 2021 by the High Court of Karnataka is set aside. Respondent No.2 (accused No.3) is directed to surrender 8 before the concerned Trial Court within a week from today, failing which, the concerned police authorities shall take him into custody for the said purpose.
13. Notwithstanding the above conclusion, since grant of bail is held unjustified at this stage, it would be open for the respondent No.2 (accused No.3) to renew his prayer for bail after the statements of the appellant and other vital witnesses are recorded. Any such application filed at that stage shall be considered in accordance with law, in the facts and circumstances arising at that stage, uninfluenced by the observations made in the present order.
14. The appeal filed by the complainant is allowed in the afore stated terms.
15. Pending applications, if any, shall stand disposed of.
..…………....................CJI.
(N.V. RAMANA) …..…………....................J. (A.S. BOPANNA) ..…..………......................J. (HIMA KOHLI) New Delhi, February 03, 2022 9 ITEM NO.48 Court 1 (Video Conferencing) SECTION IIC S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition for Special Leave to Appeal (Crl.) No.9180/2021 (Arising out of impugned final judgment and order dated 05042021 in CRLP No. 100572/2021 passed by the High Court of Karnataka Circuit Bench at Dharwad) VINOD MALALI Petitioner(s) VERSUS THE STATE OF KARNATAKA & ANR. Respondent(s) Date : 03022022 This petition was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.S. BOPANNA HON'BLE MS. JUSTICE HIMA KOHLI For Petitioner(s) Mr. Anil V. Katarki, Adv. Mr. Anil C. Nishani, Adv. Ms. Veena Katarki, Adv. Mr. Prasanna Kumar, Adv. Mr. T. R. B. Sivakumar, AOR For Respondent(s) Mr. V. N. Raghupathy, AOR Mr. Md. Apzal Ansari, Adv.
Mr. Basavaprabhu S. Patil, Sr. Adv. Mr. Anirudh Sanganeria, AOR Mr. Chinmay Deshpande, Adv.
UPON hearing the counsel the Court made the following O R D E R The Court is convened through Video Conferencing.
Leave granted.
Appeal is allowed in terms of the signed order.
(VISHAL ANAND) (R.S. NARAYANAN)
ASTT. REGISTRARcumPS COURT MASTER (NSH)
(Signed Order is placed on the file)