Document Fragment View

Matching Fragments

This petition is filed under section 439 Cr.P.C by accused No.1 in Crime No. 60/2019 registered by the respondent police for the offences punishable under sections 143, 147, 148, 341, 427, 302 read with section 149 of IPC. Investigation has been completed and charge sheet has also been filed for the said offences and also for the offences under section 3 of the Karnataka Control of Organized Crimes Act, 2000 ( 'the KCOCA Act' for short).

2. Heard the learned counsel for the petitioner and the State Public Prosecutor.

4. The learned State Public Prosecutor takes preliminary objection to the maintainability of the petition. He refers to section 12 of the KCOCA Act. According to the State Public Prosecutor, if the Special Court refuses to grant bail, that order has to be challenged in the High Court by preferring an appeal. He also submits by referring to section 22(5) of the KCOCA Act that if an accused had been granted bail in connection with another case and commits any other offence thereafter, bail should not be granted. In support of his argument that appeal is maintainable and not the bail petition under section 439, he refers to the judgment of the Supreme Court in the case of State of Gujarat vs Salimbhai Abdul Gaffar Shaikh and Others [(2003) 8 SCC 50] and State of Andhra Pradesh through IG, NIA vs Mohd. Hussain @ Saleem [(2014) 1 SCC 258].

"12. Appeal. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court.
(2) Every appeal under this section shall be preferred within thirty days from the date of the judgment, sentence or order".

8. It is clear from sub-section (1) that any sentence or order passed by a Special Court is appealable to the High Court, but so far as the order is concerned, it is made clear that it should not be an interlocutory order. That means, if the order is interlocutory, appeal cannot be preferred. The Supreme Court in the case of State of Gujarat vs Salimbhai Abdul Gaffar Shaikh and Others (supra) by referring to section 34 (4) of the Prevention of Terrorism Act, 2002 held that appeal shall lie to the High Court. Section 34(1) of the Prevention of Terrorism Act and section 12(1) of KCOCA Act are in pari materia. But, in a subsequent decision of the Supreme Court in the case of State of Andhra Pradesh through IG, NIA vs Mohd. Hussain @ Saleem, it is held in para 17 that an order granting or refusing bail is an interlocutory order. Though the matter before the Supreme Court was under the provisions of the National Investigation Agency Act, 2008, what is relevant here is the interpretation of the nature of the order on application for bail. Since it is held by the Supreme Court that any order passed on a bail application is an interlocutory order, I am of the opinion that section 12(1) of KCOCA Act is not applicable and the petition under section 439 Cr.P.C lies to this court for bail. Even the co-ordinate bench of this court has held that bail petition can be filed before the High Court under section 439 Cr.P.C in spite of invoking the provisions of KCOCA Act in the charge sheet.

11. The State Public Prosecutor has argued that as KCOCA Act is invoked, bail cannot be granted, in view of involvement of the petitioner in another crime registered by Gnanabharathi Police Station for the offences under sections 380 and 457 of IPC. There is nothing on record to show the petitioner's involvement in the earlier case being a member of organized syndicate. KCOCA Act can be invoked only if it is proved that the accused is a member of an organized syndicate. There may be sufficient cases against other accused. So far as the petitioner is concerned, there is nothing on record to show that he committed theft by lurking house trespass being a member of an organized syndicate. The another conspirator according to prosecution i.e., accused No.2, has been admitted to bail by this court in Crl. P. No. 3606/2019. Therefore, there is no impediment for granting bail in this case. Hence, I pass the following order : -