Karnataka High Court
Sri Khandya Praveen vs The State Of Karnataka on 13 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2047
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.4694/2020
BETWEEN:
Sri.Khandya Praveen
@ Praveen @ H.K. Praveen Kumar
S/o Keshavamurthy
Aged about 39 years,
R/o Khandya Village & Post
Chikkamagaluru Taluk - 577 101.
...Petitioner
(By Sri.Hashmath Pasha, Sr.Counsel
for Sri.Suyog Herele E., Advocate)
AND:
The State of Karnataka,
Through Basavanahalli Police
Station, Rep. by its State Public Prosecutor,
High Court Building,
High Court of Karnataka,
Bengaluru- 560 001.
...Respondent
(By Sri.Mahesh Shetty, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.132/2016 registered by Basavanahalli Police Station,
Chikkamagaluru, for the offence P/U/S. 364-A, 395, 386,
342, 324, 506 and 120-B r/w Section 149 of IPC.
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This Criminal Petition having been heard and
reserved on 08.10.2020 coming on for pronouncement of
Orders 'through Video Conference' this day, the Court
made the following:-
ORDER
This petition has been filed by the petitioner-accused No.4 under Section 439 of Cr.P.C. praying to release him on regular bail in Crime No.132/2016 of Basavanahalli Police Station (S.C.No.34/2018 pending on the file of the Principal District and Sessions Judge, Chikkamagaluru), for the offences punishable under Sections 364A, 395, 386, 324, 342, 506 and 120B r/w Section 149 of Indian Penal Code.
2. I have heard the learned Senior Counsel Sri.Hashmath Pasha virtually for the petitioner-accused No.4 and also the learned High Court Government Pleader Sri.Mahesh Shetty for the respondent-State.
This case has been heard and reserved on 8.10.2020 for orders and today the order has been pronounced. -3-
3. The gist of the complaint is that on 28.06.2016 at about 2.00 a.m., the complainant was about to open the gate of his house to park his vehicle. At that time, one Abhijith and six others came in a black Scorpio vehicle bearing Regn.No.KA-20/N-3659 and surrounded and thereafter kidnapped him in their car and he was also threatened not to shout and if he shouts, they will kill him. It is further alleged that the persons who were there in the car were holding deadly weapons and they also forcibly took his car key and out of them two persons took away the car and they also switched off his mobile and thereafter started proceeding to Bengaluru and thereafter took him to a go-down at Bengaluru and tied him and wrongfully confined. It is further alleged that subsequently, one Naveen Shetty assaulted on the head and face of the complainant and threatened him that he should pay Rs.25 lakhs to a person whom they are going to name and if he is not going to pay, they will take away his life. When the complainant questioned him as to why he should pay so -4- much of money, then Naveen Shetty told that he has cheated Rs.20 laksh to Nataraj Kalmane Chit Fund in a cricket betting and as such he has to pay the said amount. It is further alleged that thereafter they shifted the complainant to another place, where accused No.4 - petitioner along with Naveen Shetty came and they demanded Rs.10 lakhs. They also gave a mobile handset and he telephoned to one Shiva to arrange for Rs.10 lakhs. But the said Shiva told that he has got only Rs.2,00,000/- and the complainant told about his kidnap and requested him to arrange for money and the said Shiva agreed to arrange Rs.10 lakhs with his friends and thereafter he telephoned to Shiva and told him to pay the same to one Pavan. He further told that the said Naveen Shetty has to be paid the said amount. He also gave a mobile number 9480805120, but the said mobile number belongs to Dy.S.P. and he told to bring the said amount near the Police Quarters where he handed over Rs.10 lakhs at about -5- 10.15 p.m. On the basis of the complaint, a case was registered.
4. It is the contention of the learned Senior Counsel that, the petitioner-accused approached this Court for grant of bail in Criminal Petition No.6790/2018 on 22.10.2018, but the same came to be dismissed and subsequently he has also filed a Criminal Petition No.9456/2018. This Court by order dated 11.2.2019 rejected the bail application. Being aggrieved by the said order, the petitioner-accused No.4 approached the Hon'ble Apex Court in Special Leave to Appeal (Criminal No.2688/2019) and the same came to be dismissed on 2.4.2019. Subsequently, another Criminal Petition No.1945/2020 was filed before this Court. This Court by order dated 26.5.2020 dismissed the petition, however liberty has been given to the petitioner-accused to move this Court for bail after examination of the complainant. Petitioner-accused No.4 being aggrieved by the said order, approached the Hon'ble Supreme Court of India in Special -6- Leave to appeal (Criminal No.3211/2020). The same came to be dismissed on 31.7.2020 by confirming the order of this Court. But however, the Hon'ble Apex Court directed the trial Court to examine the complainant within two months from that date with a compliance report. It is his further submission that in pursuance of the direction issued by the Hon'ble Apex Court, complainant has been got examined before the trial Court as PW1 on 28.8.2020 and on subsequent dates. Now his examination-in-chief and cross-examination has been completed. In pursuance of the order of this Court and the Hon'ble Apex Court, now he is reviving the right to bail. It is his further submission that the transactions which have been taken place is in between the other accused persons and complainant. No serious overt acts have been alleged as against petitioner- accused No.4. It is his further submission that already the other accused persons have been granted bail and on the ground of parity, the petitioner-accused is also entitled to be released on bail. It is his further submission that this -7- petitioner-accused has not approached directly the complainant and asked about the ransom to be paid to him, on the contrary the amount has been paid to the accused No.5 the police official who is now deceased. It is his further submission that in the evidence of PW1 there is nothing to suggest that it is the petitioner-accused demanded any amount from him or from his family members and he has been detained. It is his further submission that in the evidence of PW1 nowhere he has expressed that the petitioner-accused was having an intention to take away the life of the complainant victim. In that light, it is his submissions that the provisions of Section 364A of IPC will not attract to the facts of the case on hand. It is his further submission that in order to attract the provisions of Section 364A of IPC, a person must be abducted and he should be detained and there must be threat to cause the death or such bodily injuries or by virtue of conduct gives rise to a reasonable apprehension that such person may be put to death or -8- hurt or causes hurt or death to such person to compel him to do some act or to pay a ransom. But on perusal of the evidence of the complainant- PW1, nowhere he has deposed that there was threat to the life of the complainant. It is his further submission that, on perusal of the evidence at the most without admitting the act of the petitioner-accused No.4, may attract the provisions of Sections 384 or 392 of IPC, which are not considered to be serious in the eye of law. It is his further submission that already the complainant has been got examined before the trial Court and fully cross examined. Under such circumstances, there is no question of tampering of the evidence of the complainant. It is further submitted that more than two years he is in custody, the trial may take some more time. It is further submitted that while dealing with bail application, delay in concluding the trial has to be taken into consideration. In order to support his said contention he relied on the decision in the case of State of Kerala Vs. Raneef reported in (2011) 1 SCC 784. It is -9- further submitted that now pandemic disease Covid-19 is there to keep him in judicial custody. He is ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner-accused No.4 on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that earlier this Court has granted anticipatory bail to the petitioner- accused No.4, but the same has been challenged before the Hon'ble Apex Court and the bail granted has been cancelled by holding that there is a prima facie material as against the petitioner-accused having involved in a serious offence which is punishable with death or imprisonment for life. It is his further submission that the charge sheet material clearly goes to show that petitioner-accused No.4 is the main accused and at his instance the complainant was kidnapped and amount of Rs.10 Lakhs has been paid to Dy.S.P. accused No.5 and the other accused persons
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have also monitored and kidnapped the complainant. There is prima facie material as against the petitioner- accused for having involved in the alleged crime. It is his further submission that if the petitioner-accused is enlarged on bail, he may tamper with the remaining prosecution evidence, he may abscond and may not be available for the trial. On these grounds he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. It is not in dispute that the petitioner-accused No.4 has approached this Court three times in Criminal Petition Nos.6790/2018, 9456/2018 and 1945/2020. This Court after considering the case on merits dismissed the petition. Even it is not dispute that the accused has also approached the Hon'ble Apex Court in Special Leave to Appeals and the same were also dismissed. It is the specific
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contention of the learned Senior counsel for the petitioner- accused that this Court while dismissing the Criminal Petition No.1945/2020 dated 26.5.2020 has given a liberty to the petitioner-accused to move for bail after examination of the complainant. It is his further submission that the said order has been challenged before the Hon'ble Apex Court in Special Leave to Appeal (Criminal No.3211/2020) and the said appeal also came to be dismissed on 31.7.2020 and while dismissing, it directed the trial Court to examine the complainant within two months from the said date.
8. As per the direction of the Hon'ble Apex Court, on 28.8.2020, 1.9.2020, 3.9.2020, 4.9.2020, 5.9.2020 and subsequently on 10.9.2020 the complainant-PW1 has been fully examined and cross examined before the trial Court.
9. It is the specific contention of the learned Senior Counsel that in order to attract the provisions of Section 364A of IPC, the conduct of the accused person must be reasonably apprehended that the person so detained may
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be put to death or threatened to cause death. But the evidence of PW1 does not speak anything with regard to the ingredients of Section 364A of IPC. For the purpose of brevity, I quote Section 364A of IPC, which reads as under:
"364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-
governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
10. On close reading of said Section it indicates that, there must be life threat, or such bodily injuries likely to
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cause death has to be made to the detenue who has been kidnapped for the purpose of ransom. I am of the considered opinion that whether the ingredients of Section 364A of IPC are going to be attracted or not, is a matter which has to be considered and appreciated only at the time of final disposal of the case. At this pre-matured stage when still trial is going on before the trial Court, if I express my opinion, then the case of the prosecution as well as the accused is going to be prejudiced. In that light, I am not inclined to express any opinion on the said point.
11. In pursuance of the liberty granted by this Court in Criminal Petition No.1945/2020 and as per the observation made by the Hon'ble Apex Court, after examination of PW1, the present petition has been filed. Already the remaining accused persons have been enlarged on bail and since more than two years the petitioner- accused is languishing in jail. Whether he has committed the alleged offence or not, is a matter which has to be considered and appreciated during the course of trial.
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Under such circumstances, when already PW1 has been examined and cross-examined fully, there is no threat to the complainant to tamper with his evidence or threaten him while giving the evidence. Be that as it may. This case has been registered in the year 2016. Petitioner-accused is in custody since 2018. On perusal of evidence of PW1, it has taken a long time, many more witnesses are to be examined by the trial Court. It is trite law that while considering the bail application, delay in concluding the trial has to be considered. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Raneef quoted supra. At paragraph 15 it has been observed as under:
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the
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Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr.Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
12. Keeping in view the above said aspects and as already other accused persons under similar facts and circumstances have been released on bail, I am of the considered opinion that, by imposing some stringent conditions if the petitioner-accused No.4 is ordered to be released on bail, it is going to meet the ends of justice.
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13. In that light, this petition is allowed. The petitioner-accused No.4 is ordered to be released on bail in Crime No.132/2016 of Basavanahalli Police Station (S.C.No.34/2018 pending on the file of the Principal District and Sessions Judge, Chikkamagaluru), for the offences punishable under Sections 364A, 395, 386, 324, 342, 506 and 120B r/w Section 149 of Indian Penal Code, subject to the following conditions:
i) Petitioner-accused shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) He shall not tamper with the prosecution evidence directly or indirectly.
iii) He shall not leave the jurisdiction of the Court without prior permission.
iv) He shall mark his attendance before the jurisdictional police once in fifteen days in between 10.00 a.m. and 5.00 p.m. till the trial is completed.
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v) He shall not threaten the complainant or man-handled anybody.
vi) He shall not indulge in similar type of criminal activities. If he again indulged in similar type of criminal activities, threaten the witness or man handle in any manner, the trial Court is at liberty to cancel the bail.
vii) He shall surrender the Passport and Visa, if he is having before the trial Court till the trial is concluded.
Sd/-
JUDGE *AP/-