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2008 DIGILAW 468 (KAR)

Atul Rao v. State of Karnataka

2008-09-02

ASHOK B.HINCHIGERI

body2008
ORDER Ashok B. Hinchigeri, J. This petition is filed for the grant of bail under Section 439 of the Code of Criminal Procedure. 2. The brief facts of the case are that the petitioner and Sri Raghupathi Bhat, sitting Member of the Legislative Assembly from Udupi Constituency are childhood fiends. They have been residing in the same locality. Both of them belong to Shivalli Brahmin community. The said Sri Raghupathi Bhat lodged a complaint on 19th June, 2008 with the jurisdictional police against the petitioner for the offences punishable under Sections 365 and 306 of the Indian Penal Code. 3. The case of the complainant is that the petitioner knew everything about the household and the financial affairs of the complainant. The complainant left his hometown on 11th June, 2008 to Bangalore. His efforts to get in touch with his wife Smt. Padmapriya did not lead him anywhere. On coming to know of the missing of his wife on 13th June, 2008, he came to Udupi. It came to his knowledge on 14th June, 2008 that Smt. Padmapriya is put up in some apartment in Delhi. When he rushed with his family members on 15th June, 2008 to Delhi to bring back his wife from Shama Apartments, Dwarka, they found the apartment bolted from inside. When it was broke open, her dead body was hanging inside. He has alleged that by playing black magic or witchcraft, the petitioner kidnapped her to Delhi. It is his further accusation that the petitioner has taken undue advantage of his proximity to the complainant’s family. Thus the petitioner is responsible for the suicide of a helpless lady. The complainant complained of cheating, criminal breach of trust and deceitfulness. According to the complainant, he had cordial relationship with his wife and that his wife was of innocent nature. 4. Although the complaint was lodged on 19th June, 2008, it was registered by Police only on 22nd June, 2008, as they were awaiting the legal advice, which they had sought. 5. The petitioner moved the Court of Sessions Judge, Udupi for the grant of bail. The Sessions Court refused to grant the bail, as the investigation was not yet completed. Although the complaint was lodged on 19th June, 2008, it was registered by Police only on 22nd June, 2008, as they were awaiting the legal advice, which they had sought. 5. The petitioner moved the Court of Sessions Judge, Udupi for the grant of bail. The Sessions Court refused to grant the bail, as the investigation was not yet completed. The Sessions Court felt that whether the deceased lady was taken to Delhi by practicing witchcraft or she was persuaded to go there or went there with her consent, are all the matters to be decided on the conclusion of the trial. But the main reason for the denial of the bail to the petitioner is that if the petitioner is permitted to come out of jail, his life would be in danger. For forming this threat perception, the Sessions Court has relied on (a) the affidavit filed by the petitioner’s wife that there is a life threat to her husband in the jail and (b) the records revealing that on 2nd July, 2008 there was an attempt by some of the inmates of Udupi jail to assault the petitioner in jail itself. The Sessions Court’s reasoning and assessment are contained in the following sentence: “I am of the opinion, at this threshold stage, when particularly the life of the petitioner is in danger, if he is released on bail, if some unpleasant event happens, the Court may also be responsible for that, because knowing fully well that the life of the petitioner is in danger, if the Court releases him on bail.” 6. On forming the above said opinion, the Sessions Court has rejected the bail petition. 7. Sri Jayakumar S. Patil, the learned Senior Counsel appearing for M/s. Jayakumar S. Patil Associates for the petitioner submits that the complainant’s version is full of loose ends. He submits that the deceased Smt. Padmapriya left home on 11th June, 2008. The petitioner was arrested off the record on 13th June, 2008 itself and based on his information, the police and the complainant and some of his relatives went to Delhi. He submits that the materials collected so far decisively indicate that the deceased has gone to Delhi of her own volition, as the marriage between herself and the complainant had fallen on the rocks. 8. He submits that the materials collected so far decisively indicate that the deceased has gone to Delhi of her own volition, as the marriage between herself and the complainant had fallen on the rocks. 8. Sri Patil further submits that the petitioner is being persecuted only because of the political personalities involved. The complainant is a sitting M.L.A. belonging to the ruling party. 9. He brings to my notice the statement issued by a disinterested witness, namely, Sri Nirdosh Kumar, watchman of Shama Apartments. He has stated that on 14th June, 2008 the deceased Smt. Padmapriya had gone out of and come back to her apartment on her own. Sri Patil uses this statement to buttress his submission that there was no abduction; if there were any force, it would not have been possible for her to go out and get back on her own, without being escorted by anyone. Sri Nirdosh Kumar’s further statement is also read out to me by Sri Patil. He has stated that on 15th June, 2008 in the morning between 10 a.m. and 12.00 noon, some people came to her apartment and met her. Nextly, Sri Patilhas also read out the statement of Sri Rajasheker, the brother of the deceased Smt. Padmapriya. He states that the complainant’s sister-in-law Shanti and Sunil Kumar were in Delhi on the material day. Though the charge sheet is submitted, the statement of Sri Sunil Kumar, the material witness, is not yet recorded. In the charge sheet the Sections of IPC invoked are 417, 465, 468 and 471. Of these offences, only the offence under Section 468 is non-bailable. He further submits that if the materials placed on record are dissected, the ingredients of the alleged offences are not made out at all. 10. Per contra, Sri P.M. Nawaz, the learned Additional State Public Prosecutor draws my attention to the elaborate statement of objections filed on behalf of the respondent. He submits that only a preliminary charge sheet is filed. One more charge sheet is being filed on the completion of further investigation. He therefore submits that if the petitioner is enlarged on bail at this juncture, he may tamper with the witnesses which hampers CoD’s investigation, which is in progress as of now. He submits that the post mortem report is not yet received. Therefore the cause of the death of Smt. Padmapriya is not yet ascertained. 11. He therefore submits that if the petitioner is enlarged on bail at this juncture, he may tamper with the witnesses which hampers CoD’s investigation, which is in progress as of now. He submits that the post mortem report is not yet received. Therefore the cause of the death of Smt. Padmapriya is not yet ascertained. 11. Sri Nawaz brings to my notice the mahazar drawn at the time of seizure of the vehicle which was used by the deceased Smt. Padmapriya. It speaks of some currency notes being left behind in the car, broken bangle pieces, a steel utensil, Horlicks bottle, not clearly legible scars in red color, etc. Therefore investigation has to be from different angles. He submits that the use of force by the petitioner in taking the deceased Smt. Padmapriya to Delhi cannot be ruled out at this juncture. He has relied upon a judgment of the Hon’ble Supreme Court in the case of RAJESH RANJAN YADAV Vs. C.B.I. reported in AIR 2007 SC 451 , wherein it is held that a balance has to be struck between the right to individual liberty and the interest of society. Certain reasonable restrictions can be imposed on the righ to liberty guaranteed under Article 21 of the Constitution of India. 12. The last submission of Sri Nawaz is that in the light of the filing of the charge sheet, it is open to the petitioner to move the Sessions Court for the grant of bail again. He prays for the dismissal of this case. 13. On careful consideration of the submissions made at the bar and the perusal of the documents placed before me, I find there are no factors against the granting of bail to the petitioner. The Sessions Court’s view that bail has to be refused to the petitioner as there is a serious threat to his life, if he comes out of the jail, is not in keeping with the provisions contained in Article 21 to the Constitution of India. If the release of the accused is posing a threat to the security of the society, then it has to be denied to him, but not the converse of the same. If he is otherwise entitled to be released on bail, there is no reason why it should be denied to him merely because his presence outside the jail would invite threat to his life. If he is otherwise entitled to be released on bail, there is no reason why it should be denied to him merely because his presence outside the jail would invite threat to his life. The issue of refusing the bail has to be tested on the touchstone of Article 21 to the Constitution of India. In this regard, it is worthwhile to refer to the Hon’ble Supreme Court’s judgment in the case of GUDIKANTI NARASIMHULU AND OTHERS Vs. PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH reported in AIR 1978 SC 429 . It is held therein that the significance and sweep of Article 21 make the deprivation of liberty matter of grave concern; if public justice is to be promoted, mechanical detention should be demoted. The Hon’ble Supreme Court has further held that all deprivation of liberty is validated by social defence and individual correction along an anti criminal direction. 14. The judgment relied upon by Sri P.M. Nawaz has no application for the facts of this case, as the accused in the reported case was facing triple murder charge and that he has been a Member of the Parliament. But in the instant case the accused petitioner has no such criminal background. 15. If there is threat to the life of the accused, the paramount need is to give him protection and not to deny him the bail and keep him in the jail for his own security reasons. Liberty of a citizen has to be zealously safeguarded, particularly when his release from the jail is not posing any threat to the public at large. 16. It is not stated in the statement of objections as to what was the legal advice sought, when int was received, etc. Although the death took place on 15th June, 2008, the complaint came to be lodged on 19th June, 2008 and it came to be registered on 22nd June, 2008. The delay at all the stages is not cogently and satisfactorily explained. Nothing is forthcoming as to why the statement of Sri Sunil Kumar, the former M.L.A. from Karkal, who went to Delhi, is not recorded. The statement made by the watchman of Shama Apartments in Delhi is indicative of two things (a) there were no restrictions on the movement of the deceased lady. Nothing is forthcoming as to why the statement of Sri Sunil Kumar, the former M.L.A. from Karkal, who went to Delhi, is not recorded. The statement made by the watchman of Shama Apartments in Delhi is indicative of two things (a) there were no restrictions on the movement of the deceased lady. As a matter of fact she went out and came back on her own without being escorted by any one; and (b) others also had an access to her. Betwee 10.00 a.m. and 12.00 noon on the fateful day of 15th June, 2008, some people met her without disclosing their identity. This is the categorical statement of the watchman. Thus prima facie it is difficult to believe or hold that the deceased Smt. Padmapriya was forcibly abducted by the petitioner. 17. It has also come on record that the arrangement for taking the deceased Smt. Padmapriya to Delhi began in February, 2008. Therefore not much credence can be attached to the claim that all was well in the wedlock between the complainant and the deceased Smt. Padmapriya, just because she compaigned for him in the elections to the Karnataka State Legislative Assembly in April 2008. 18. It is trite position in law that where the offence is not bailable, the Court has to decide the question of grant of bail in the light of the considerations such as: (a) the nature of seriousness of the offences; (b) character of the offence; (c) circumstances which are peculiar to the accused; (d) possibility of not securing the presence of the accused at the trial; (e) reasonable apprehension of the witnesses being tampered with; (f) the larger interest of the public or of the State. 19. The Courts normally decline bail in cases of offences punishable with death or imprisonment for life since the severity of punishment is itself a facor as to induce the accused to flee from justice. 20. The Hon’ble Supreme Court in the case of HUSSAINARA KHATOON AND OTHERS Vs. HOME SECRETARY, STATE OF BIHAR, PATNA, reported in AIR 1979 SC 1360 has taken the considered view that the primary principle of criminal law is that imprisonment may follow a judgment of guilt but should not precede it. 20. The Hon’ble Supreme Court in the case of HUSSAINARA KHATOON AND OTHERS Vs. HOME SECRETARY, STATE OF BIHAR, PATNA, reported in AIR 1979 SC 1360 has taken the considered view that the primary principle of criminal law is that imprisonment may follow a judgment of guilt but should not precede it. Pre-trial detention has a purpose and policy behind it and the issue of bail or jail has to be decided by the Court on relevant criteria and not on emotionally appealing but legally impertinent circumstances. 21. The accused petitioner has not evaded the arrest; on the other hand he has surrendered himself. The previous conduct of the accused is also a circumstance to be taken into consideration. The requirements as to bail are to secure the attendance of the accused at the trial and the bail is not to be withheld as a measure of punishment. When no legitimate apprehension is expressed that there is possibility of abscondence of the petitioner, there is no harm in considering his request for bail. 22. The Court considering the bail application must have some materials before it from which it would be satisfied that the apprehension that the accused would tamper with the evidence if released on bail is genuine. Only because some allegations are made that if released on bail, the accused would tamper with evidence may not be sufficient for the Court to refuse the bail to the accused person. That the refusal of the bail is a serious matter because the liberty of a citizen of India is interfered with when the bail is refused. 23. Taking all these factors and circumstances into pragmatic consideration, I grant bail to the petitioner subject to the following conditions: (1) The petitioner shall execute the bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties for the like sum to the satisfaction of the jurisdictional Court; (2) The petitioner shall not tamper with the prosecution witnesses; (3) The petitioner shall attend the Trial Court regularly; (4) The petitioner shall mark his presence before the Station House Officer, Manipal Police Station on every Sunday between 10.00 a.m. and 2.00 p.m.; (5) The petitioner shall make himself available before the Investigation Officer, CoD, as and when required; (6) The petitioner shall co-operate with the Investigation Officer. (7) If the petitioner fails to comply with any or all the conditions stipulated herein above, it is open to the respondent to move the Court for the cancellation of the bail. 24. It is made clear that the reasons shown and the observations made by me are only for the purpose of disposing of this petition. The jurisdictional Court shall decide the criminal case pending before it, uninfluenced by the reasons shown and the observations made while granting the bail.