Karnataka High Court
Rajesh S/O. Raju Rudrapati vs State Of Karnataka on 23 December, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
CRL.P. NO.101536 OF 2020
1
IN THE HIGH COURT OF KARNATAKA AT
DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.101536 OF 2020
BETWEEN:
SRI. RAJESH
S/O RAJU RUDRAPATI
AGED ABOUT 35 YEARS
OCC: BUSINESS
R/O BAILAPUR, TQ DANDELI
DIST. KARWAR - 581325
... PETITIONER
(BY SRI.SANDESH P. CHOUTA, SENIOR ADVOCATE FOR
SRI. ISMAIL M. MUSBA, ADVOCATE)
AND:
STATE OF KARNATAKA
(THROUGH DHARWAD RURAL P.S.
CRIME NO.157 OF 2019
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENCH AT DHARWAD-580011
... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C, ALLOWING THE PETITION AND GRANT BAIL TO
THE PETITIONER/ACCUSED NO.3 IN CC NO.3871/2019
(ARISING OUT OF THE CRIME NO.157 OF 2019) PENDING ON
THE FILE OF IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
DHARWAD FOR OFFENCE PUNISHABLE UNDER SECTION 120
CRL.P. NO.101536 OF 2020
2
(B), 302 AND 201 R/W 34 OF INDIAN PENAL CODE AND
SECTION 27(3) OF ARMS ACT, AGAINST THE PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THIS DAY, THROUGH VIDEO CONFERENCE THE COURT
MADE THE FOLLOWING:
ORDER
1. The petitioner - accused No.3 in Crime No.157 of 2019 of Dharwad Rural Police Station subsequently registered as C.C.No.3871 of 2019 pending on the file of IV-Additional Senior Civil Judge and JMFC, Dharwad for the offences punishable under Sections 12(B), 302 and 201 read with Section 34 of IPC and Section 27(3) of ARMS Act, is before this Court seeking to be enlarged on bail, contending that the petitioner has been in judicial custody since 28.09.2019.
2. This is a successive bail petition being filed.
Once earlier Crl.P No.100610/2020 was filed, this Court after considering all the aspects rejected the said petition for bail mainly on the CRL.P. NO.101536 OF 2020 3 ground that offences alleged against the Petitioner are serious in nature punishable by death or life imprisonment and the Petitioner being an influential person would be in a position to influence the witness and/or tamper with the evidence in order to scuttle the trial.
3. The facts and contentions are not repeated in this order, the same could be referred to in the order passed in Crl.P No.100610/2020.
4. Sri.Sandesh P.Chouta, learned Senior Counsel appearing for the Petitioner though had addressed arguments in detail virtually rearguing the matter.
5. He, however, submits as regards the changed circumstances that 5.1. In the earlier order, the prosecution had misled this Court contending that the Petitioner was a former Corporator CRL.P. NO.101536 OF 2020 4 whereas a submission is made now that the Petitioner is not a former Corporator but Petitioner's father was a former Corporator, hence the Petitioner does not wield any influence so as to be able to influence any witness or tamper with witnesses.
5.2. Accused Nos.2 and 4 have been granted bail, hence the Petitioner also ought to be granted bail on parity with that of accused Nos.2 and 4.
6. Sri.Sandesh P.Chouta, learned Senior Counsel appearing for the Petitioner has relied on the following decisions:
6.1. Sri.Vivek & another vs. The State of Karnataka by Kunigal Police Station and another [ILR 2018 KAR 1497] [Para - 32]
32. It is to be noted here that our judiciary is constantly trying to make the concept of justice CRL.P. NO.101536 OF 2020 5 real in accordance with the legal pronouncements of the Hon'ble Apex Court. The judicial system even though it is said to be perfectly structured, may not yet be so perfect in interpreting the law.
Therefore, we have to be always innovative and reformative in our endeavor. If there is any mistake committed, we should fairly correct it to bring it in consonance with the correct interpretation of law. It is relevant to refer to the decision of the Apex Court in the case of Hotel Balaji v. State of U.P. wherein the following observation of Justice Bhagawathi in an early case is extracted at page 551:
"To perpetuate an error is not heroism. To rectify it is the compulsion of judicial conscience"
Therefore, introspection and improvement are the two eyes of our system to see what corrective measures are absolutely necessary for the purpose of almost making the judgment/order nearly to Zero Defective. There may be circumstances where the Court may commit mistake, but if the said mistake is brought to the notice of the Court subsequently and if the Court has got an opportunity to correct the same, the Court should not lag behind in correcting its mistake so as to proceed in the right path. Therefore, it should be borne in mind by the Courts that-"A saner thought will always throw more light even on the same subject". Bearing in mind the above said aspects, I am of the opinion that the above said orders passed by me is not in consonance with the law laid down by the Hon'ble Apex Court. Every day, law is developing by virtue of saner interpretation of the laws by the higher Courts and the Hon'ble Apex Court. The Court should always lean in favour of correcting its mistake when need arises in accordance with the development and interpretation of laws by the Hon'ble Apex Court, more so said interpretation is particularly and purely based on legal aspects. Therefore, as the above observations made by me earlier in the two decisions are not correct and in consonance with the Hon'ble Apex Court, I have ventured upon to discuss this matter in detail so as to correct the CRL.P. NO.101536 OF 2020 6 mistakes and guidelines are properly laid down in this case.
6.2. Hotel Balaji and others vs. State of A.P. and others [1993 Supp (4) SCC 536] [Para 12]
12. I am quite conscious that the conclusion I have expressed here as to the vires of the provision impugned is contrary to the conclusion I reached in Goodyear on somewhat analogous provisions. I need not, for the purposes of the present cases, express any final conclusion as to whether the conclusion in Goodyear was rightly reached in the context of the provisions of the statutes there considered or would need a second look and fresh consideration in the context of what has been said here. But, I should not, I think, hesitate to accept the point of view now presented to us which appeals to me as more realistic, appropriate and preferable, particularly when I see that the view one way or the other would affect the validity of a large number of similar legislations all over India, merely because it may not be consistent with the view I took in Goodyear. Consistency, for the mere sake of it, is no virtue. If precedent is needed to justify my change of mind, I may quote Bhagwati, J. (as he then was) in Distributors (Baroda) P. Ltd. v. Union of India.
"We have given our most anxious consideration to this question, particularly since one of us, namely, P.N. Bhagwati, J. was a party to the decision in Cloth Traders' case [Cloth Traders (P) Ltd. v. CIT]. But having regard to the various considerations to which we shall advert in detail when we examine the arguments advanced on behalf of the parties, we are compelled to reach the conclusion that Cloth Traders' case [Cloth Traders (P) Ltd. v. CIT must be regarded as wrongly decided. The view taken in that case in regard to the construction of Section 80-M must be held to be erroneous and it CRL.P. NO.101536 OF 2020 7 must be corrected. To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter 'a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'."
6.3. Rajaram vs. State of Karnataka [Criminal Petition No.4945/2020] [Para 7]
7. On close reading the material placed on record it indicates that petitioner-accused No.8 is the main accused it is who set up accused Nos.1 to 7 to done away with the life of the deceased it is a matter which has to be considered and appreciated only during the course of trial. Already the charge sheet has been filed and petitioner-accused No.8 is not required for the purpose of investigation or interrogation. Under such circumstances, I am of the considered opinion that petitioner-accused No.3 has made out a case so as to release him on bail. Taking into consideration, I am of the considered opinion that if by imposing some stringent conditions, petitioner-accused No.8 is ordered to be enlarged on bail, it is going to meet the ends of justice. In that light, the petition is allowed.
6.4. Sri.R.Narayana vs. State of Karnataka [Criminal Petition No.6043/2014] [Para 5]
5. Perused the order passed by this Court on 11.11.2014, 19.06.2014, 11.11.2014, 18.11.2014 CRL.P. NO.101536 OF 2020 8 and 17.11.2014 passed in the above mentioned criminal petitions releasing Accused Nos.8, 10, 14, 25 and 36 respectively, wherein this Court has made an elaborate discussion about the role of each and every accused. The overt-act attributed against this Petitioner is in regard to hatching a conspiracy while moving with Accused No.36 in a car at the relevant point of time near the scene of occurrence. Granting bail to this similarly placed accused is an important changed circumstance so as to consider the bail application of this Petitioner and it would not prudent to reject the bail application, more particularly when similarly placed accused have been granted bail by this Court, after considering the materials on record. Hence, parity has to be made applicable in this present application also.
6.5. Mohammed Nalpad Haris vs. State of Karnataka [Criminal Petition No.4072/2018] [Paras 14, 15, 19, 21, 22]
14. The other reason assigned by the trial court for rejection of the application filed by the Petitioner is also not based on sound legal principles and is contrary to the material found on record. In para 25 of the order, the learned trial Judge has observed that "in the case of grant of the bail, the Petitioner, by using his power and position, will certainly try to erase evidence, misdirect prosecution witnesses, bring pressure upon the witnesses and investigating officers and cause influence. A fair and free trial could not be achieved if the Petitioner is let out on bail."
15. I do not find any basis for the trial court to come to the above conclusion. There is nothing in the entire charge sheet to indicate that the Petitioner was in a position or power to bring pressure on the Investigating Officer or the witnesses. The records reveal that the Petitioner CRL.P. NO.101536 OF 2020 9 was a Graduate and was assisting his father in running his Industry. No-doubt, there is enough material to show that the father of the Petitioner is a local M.L.A.. But merely on that ground, it cannot be assumed that the Petitioner was in a influential position and that he was making use of the power and position of his father to misdirect the investigation or to screen himself from the legal punishment. There is no presumption that the son of a M.L.A. is in a position to wield power and influence on all and sundry. Just as, a son cannot be made liable for the sins of his father, the status and position of a father cannot act as a disability against a son to seek bail. Therefore, it was not proper on the part of the learned Sessions Judge to deny bail to the Petitioner on the purported ground that the Petitioner was in a position to use power and influence, in case, he was released on bail
19. The learned Special Public Prosecutor does not dispute the fact and it is also a matter on record that except slapping on the face of the injured twice and kicking him once, no other injury has been caused by the Petitioner to CW-2 or any other witnesses. According to the prosecution, CW- 2 sustained the following injuries viz.,
1. Facial contusion/sub-conjunctival hemorrhages.
2. Fracture of both nasal bones and frontal process of left maxilla.
3. Fracture ribs at lateral angles.
a. Right 4th to 9th ribs b. Left 4th to 8th ribs.
21. When the learned Spl. Public Prosecutor was pointedly asked as to what was the intention or motive of the accused persons to attack and assault CW-2, the quick reply by learned Special Public Prosecutor was that it was " show of power". It is rightly so. The circumstances indicate that with a view to compel CW-2 to fall to the feet of the Petitioner, CW-2 was bet and wounded but not CRL.P. NO.101536 OF 2020 10 with the intention to cause his death or to cause such injury which in the ordinary course of the nature would lead to his death. Therefore, viewed from any angle, the acts alleged against the Petitioner do not attract the ingredients of offence under section 307 Indian Penal Code.
22. The records indicate that the charge under section 307 Indian Penal Code came to be inserted at a later stage after recording the statement of the injured witness. There is inordinate delay in recording the statement of CW-2. Though the 20 medical records indicate that CW-2 was in a fit condition to give his statement on 26.02.2018, his statement came to be recorded only on 03.03.2018. The statement made by CW-2 imputing allegation that the Petitioner forced him to fall to his feet and on account of his refusal to heed to the demand of the Petitioner, he was slapped and assaulted by the accused does not find place in the complaint lodged by CW-1 at the earliest point of time. All these circumstances indicate that a deliberate attempt has been made to improve the case of the prosecution from stage to stage to bolster up the charges, solely with a view to deny bail to the Petitioner. Even though charge sheet is laid under section 149 Indian Penal Code, yet, it is trite law that the common object of unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the associates before and after the occurrence. An inference of common object could be deduced from the facts and circumstances of each case. In the instant case, as already observed above, the entire incident is stated to have taken place without any premeditation in a sudden fight. The parties never knew each other. None of the parties had any intention or motive to harm or injure CW-2. Neither the Petitioner nor any of the accused were armed with deadly weapons. There are no allegations against the Petitioner that he used any weapon to cause injuries on CW-2. Accused No.7 is already enlarged on bail by orders of this Court in Criminal Petition No.2263/2018. Therefore, having regard to all these facts and circumstances, I am of the view CRL.P. NO.101536 OF 2020 11 that the Petitioner requires to be admitted to bail subject to conditions.
6.6. Balkrishna Tukaram Angre vs. The State of Maharashtra [Criminal Appeal No.1704/2017] [Para 3]
3. The entire case of the prosecution rests on circumstantial evidence. The appellant has been in custody for fifteen months. Charge sheet has already been filed in the case. Having heard learned counsel for the parties, we are of the view that it is just and proper to release the appellant on bail.
6.7. Bhagirathsinh vs. State of Gujarat [1984 (1) SCC 284] [Para 7]
7. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court CRL.P. NO.101536 OF 2020 12 that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court.
6.8. On the basis of the above decisions Sri. Sandesh Chouta, learned Senior Counsel contends that the present petition needs to be allowed and bail granted.
7. Sri Nageshwarappa, learned HCGP appearing for the State would submit that the offences alleged against the Petitioner are serious in nature, is punishable with death or imprisonment for life.
The Petitioner being highly influential ought not to be granted bail, in the event of grant of bail, the Petitioner is likely to tamper with the evidence and or influence the witnesses, the said apprehension has not been reduced from CRL.P. NO.101536 OF 2020 13 the date of passing of the earlier order of rejection.
8. Heard Sri Sandesh Chouta, learned Senior Counsel for the Petitioner, Sri Nageshwarappa, learned HCGP for the state and perused papers.
9. The short question that arises for consideration in the present matter is if there are any changed circumstances requiring this court to enlarge the Petitioner on bail.
10. The decision in Hotel Balaji's case (supra) referred to by the learned Senior Counsel is as regards a mistake if committed by the Court could be corrected. There cannot be any quarrel with the said proposition. If there is a mistake, the same would be required to be corrected.
However, it is not clear from the submissions made by Sri.Sandesh Chouta, learned Senior counsel as to what that mistake is. The mistake CRL.P. NO.101536 OF 2020 14 if any is attributed to the submission made by the prosecution that the Petitioner is a former Corporator when infact it was the father of the Petitioner who was the former Corporator.
11. The contention raised by the prosecution was that since the Petitioner is an influential person, he could influence the witness as also tamper the evidence.
12. By relying on the decision of Mohammed Nalpad Haris's case (supra), Sri.Sandesh Chouta, learned Senior Counsel sought to be contended that merely because the father of the accused is a MLA, it cannot be presumed that the Petitioner is also an influential person. The said case would not apply to the present facts situation, in that case, the offence alleged was one of causing grievous hurt and later on, the offence of attempt to murder was added. In the CRL.P. NO.101536 OF 2020 15 present case, the allegation is that the Petitioner hired the other accused to commit the murder of Mr.Shyam Sunder Devraj by making payment of monies to other accused and other accused have infact successfully carried out the task allotted to them and committed the said murder.
Whether the allegation is true or not would be the subject matter of trial but the fact remains that the allegations made is that the Petitioner has hired the services of other accused.
13. The Petitioner wanting his wife to get a ticket in the election as also the nude photographs of his father having been published being the alleged cause for the above crime of murder, would stand on a different footing than that of a grievous hurt.
14. There is no change in the circumstances of the Petitioner having sufficient monies and CRL.P. NO.101536 OF 2020 16 resources to influence the witness as also tamper with the evidence.
15. The fact of the Petitioner's father being the corporator does not in any manner take away the apprehension on part of the prosecution as regards the influence that the Petitioner may have with the witnesses and/or tampering with the evidence. More so, when the Petitioner is alleged to have paid accused Nos.2 and 4 to murder one Mr.Shyam Sundar Devraj who is the brother-in-law of a person who has successful in getting the ticket in the constituency where the Petitioner's wife was also seeking for a ticket.
16. The other contention raised by Mr.Sandesh Chouta, learned Senior Counsel is that accused Nos.2 and 4 had been granted bail subsequent to the order dated 04.08.2020 rejecting the bail application of the Petitioner. He submits that on CRL.P. NO.101536 OF 2020 17 account of parity the Petitioner ought to be enlarged on bail.
17. Perusal of the order dated 01.10.2020 passed in Crl.P No.101122/2020 granting bail to the accused No.4, it is seen that, accused No.4 not being the person who initiated the crime and he being only the person who has carried out the orders of the Petitioner herein, accused No.4 was granted bail. It is on the basis of the said order that accused No.2 was also granted bail in Crl.Misc.No.539/2020 by 4th Additional District and Sessions Judge, Dharwad.
18. Accused Nos.2 and 4 are not in parity with the Petitioner. In the sense, it is the Petitioner who has hired the services of accused Nos.2 and 4 to cause the murder. Accused Nos.2 and 4 by themselves would not have any means of tampering with the evidence and/or influencing CRL.P. NO.101536 OF 2020 18 the witnesses whereas the Petitioner stands on a different footing. The Petitioner is stated to have both political and money power.
Therefore, the apprehension of the prosecution cannot at this stage said to be misconceived.
19. It is the petitioner who is stated to have furnished a pistol stated to be manufactured by CW-32's father, to accused Nos.1, 2 and 4.
20. It is also alleged that the petitioner was in constant contact with accused Nos.1, 2 and 4, towards which the telecom provider AIRTEL has issued report in the form of CD containing various call records.
21. It has also come out during the investigation that the petitioner - accused No.3 had requested one Sunanda (CW-29), who was a business acquaintance of the petitioner to make payment of Rs.10,000/- to accused Nos.1, 2 and CRL.P. NO.101536 OF 2020 19 4 on a promise to reimburse the same. She had hence made payment of Rs.10,000/- to accused Nos.1, 2 and 4 on 25.09.2019, which has been reimbursed by petitioner - accused No.3 to the said Sunanda on the very same day i.e., on 25.09.2019.
22. Based on the above, it was contended that the petitioner - accused No.3 is involved in the above crime and/or that the crime has been committed at the instance of the petitioner -
accused No.3.
23. In my considered opinion the grant of bail to accused Nos.2 and 4 who are the people who are engaged by the petitioner to cause the murder cannot be treated on parity with the case of the petitioner inasmuch as those persons do not have any influence on the witnesses so as to scuttle the trial whereas the petitioner though now stated to be the son of former CRL.P. NO.101536 OF 2020 20 Corporator and not a Corporator by himself, the apprehension is still that the petitioner has enough influence in the said area to scuttle the trial.
24. Sri.Sandesh Chouta, learned Senior Counsel has also relied on the decision of this Court in Rajaram and Narayana's cases (supra) to contend that there is a parity between the Petitioner and accused Nos.2 and 4.
25. In Rajaram's case (supra), there is no allegation as regards the petitioner therein being in a position to influence the witness and/or tamper with the evidence. In Narayana's case (supra), the offence charged against the Petitioner therein is one of conspiracy with accused No.36 therein who was granted bail. It is for that reason that the petitioner therein was also granted bail. The said circumstances and CRL.P. NO.101536 OF 2020 21 the present circumstances are not even similar, let alone identical. Hence, those decisions are also not applicable to the present facts.
26. As regards the decision, in Balakrishna Tukaram Angre's case (supra), the offence though relating to offence under Section 302, the entire case was one with circumstantial evidence and therefore, bail was granted which would also not applicable to the present facts.
Though Para 7 of Bhagirathsinh's case (supra) referred to and relied upon, the same would also not be applicable since that was a case relating to cancellation of bail and not grant of bail.
27. In view thereof, I am of the considered opinion that there are no particular changed circumstances which can be said to materially CRL.P. NO.101536 OF 2020 22 change the view taken earlier and as such, the above petition is dismissed.
SD/-
JUDGE Prs*