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2013 DIGILAW 1323 (KAR)

Kashibai v. Parasuram

2013-11-21

H.G.RAMESH

body2013
ORDER H.G. Ramesh, J. 1. The petitioner has sought rejection of bail in connection with S.C.No. 167/2012 passed by the II Addl. Sessions Judge, Bijapur on the ground that the accused have violated the conditions imposed by the Court after granting the bail. 2. Heard the learned counsel for the petitioner and the learned counsel representing the accused and the learned Addl. SPP. 3. It is alleged that in connection with grant of bail for the accused the petitioner being the wife of the deceased, filed an application for cancellation of bail granted to the accused. However, the same has been disputed by stating that in order to get property and estate petitioner being the wife of the deceased has come before the Court and the petitioner cannot maintain such an application. If the prosecution has suo motu found fit, it can seek for cancellation of bail as per Section 439(2) of Cr.P.C. Suo motu power is not conferred on the complainant or the aggrieved. Moreover, petitioner is not concerned with the deceased and the matter is still under investigation. Accordingly, he has relied upon the judgment of this Court reported in 2013 (2) KCCR 994 in the case of Shankar vs. State of Karnataka and Others to contend that no petition can be maintained in this regard. At the most petitioner would assist the prosecution in the event the State takes a decision to file an application for cancellation of bail and suo motu petitioner cannot invoke the jurisdiction of this Court and the same cannot be entertained. Further, he has also relied upon another judgment of this Court reported in 2008 (3) KCCR 1817 (DB) on this aspect. 4. The learned counsel appearing for the petitioner has relied upon a decision reported in 2001 SAR (Criminal) 565 - Puran vs. Rambilas & Anr. The Apex Court referring to section 482 and 439(2) of Cr.P.C. regarding cancellation of bail held that power is conferred on the Courts and there is nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves a petition. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Counsel has also referred to the judgment of the Supreme Court in the case of R. Rathinam vs. State by DSP, District Crime Branch, Madurai, reported in 2000 (2) SCC 391 . 5. In the case on hand it transpires that there is a complaint filed against several accused who are respondents herein, alleging cause of death of the deceased who is said to be the husband of the petitioner. The submission of the counsel for the accused is that as per the opinion of the doctor, there are only simple injuries and the deceased was got discharged against medical advise. Thereafter, after four to five days deceased succumbed to the injuries. As per the post-mortem report, the death was due to poisoning. There is no involvement of the respondents with regard to the injuries sustained. The Sessions Court granted bail on the ground that initially there is only one injury subsequently there are nine injuries and opined that all the injuries are simple in nature. According to the submission of the learned counsel for the accused, to grab valuable property of the deceased, she has shown interest to seek for cancellation of bail on the ground that the death of the deceased was caused due to the injuries. But the medical report is otherwise. Accordingly, it is submitted that the petitioner has no locus standi to seek cancellation of bail. At the most, State can take a decision to file the application for cancellation of bail under Section 439(2) of Cr.P.C. and in such an event, petitioner can assist the prosecution. The petitioner suo motto independently cannot invoke the jurisdiction of the Sessions Court or High Court seeking for cancellation of bail. 6. In the Division Bench judgment of this Court referred to by the counsel for the accused in the case of Smt. Suliya vs. The State of Karnataka reported in 2008 (3) KCCR 1817 (DB), the case was with respect to cancellation of bail for non appearance of the accused regularly wherein it is noted that on facts that State has not made an application for cancellation of bail except that State has taken contention that the accused was not prompt in appearing to the court. It is observed that without there being an application under Section 439(2) Cr.P.C. by the State and proper opportunity for the accused to meet the case, it was not proper for the Sessions Court to have cancelled the bail and remand the accused to judicial custody. 7. The above observation was with respect to compliance of principles of natural justice by the order of Sessions Court before cancellation of bail granted to the accused and remand of the accused and in that context, order was rendered setting aside the order of cancellation of bail. The above case has nothing to do with the case in hand. Even in the case reported in 2013 (2) KCCR 994 in the case of Shankar vs. State of Karnataka and others wherein it is held, the counsel engaged by the victim can only assist the prosecution to the extent as spelt out in Section 24(8) of Cr.P.C. and that the court may permit the victim to engage an advocate of his choice to assist the prosecution and that there is limitation and it certainly does not enlarge the scope of the role that can be played by such an advocate engaged by the victim except to assist the prosecutor. On this, learned counsel appearing for the accused has submitted, only on such an application being filed by the State for cancellation of bail the court may permit the victim to engage the accused (counsel for the accused) to assist the prosecution. 8. In the case on hand, noting the injuries caused on the deceased are simple in nature and against medical advise the deceased was got discharged and also cause of death was due to poison, it is the submission of the learned counsel for the accused, might be the deceased would have died due to poisoning and suspecting that, viscera and HPR report is awaited. Accordingly, it is submitted that the cause of death of the deceased is due to poison and there is no illegality in the order passed by the Sessions Court. Further, it is only when the State as per Section 24(8) of Cr.P.C. files an application under Section 439(2) of Cr.P.C. on behalf of the complainant for cancellation of bail, the Court may permit the victim or aggrieved to assist the prosecution. Further, it is only when the State as per Section 24(8) of Cr.P.C. files an application under Section 439(2) of Cr.P.C. on behalf of the complainant for cancellation of bail, the Court may permit the victim or aggrieved to assist the prosecution. The complainant or the aggrieved cannot independently prosecute without an application seeking permission to engage an advocate of his choice and without there being permission from the Sessions Court or without there being an application by the State for cancellation of bail under Section 439(2) of Cr.P.C. Accordingly, he has sought for dismissal of the application filed by the petitioner who claims to be the mistress or wife of the deceased who rather is a kept mistress of the deceased and to grab all valuable property she has come out with such an application which is not maintainable. 9. Section 439(2) of Cr.P.C. reads as under; Section 24(8) The Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor; (Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section) By an amendment to Section 24(8) during 2009 to come into effect from 31.12.2009, a decision is taken to introduce the words - that the Court may permit the victim to engage an advocate of his choice to assist the prosecution. The very words 'may permit' of course, has to be read as if on such an application being made, the court shall permit the victim to engage an advocate. Having regard to the tenor of the provision by the amendment introduced i.e., in the normal course such permission shall be granted on such application being filed by the victim or the person concerned on behalf of the victim, in an exceptional circumstance, that could be decided by the Sessions Court whether to grant permission or not for reasons to be assigned. In the decision reported in 2001 (Criminal) 565 SC in the case of Puran etc. vs. Rambilas & Another, wherein in a similar situation, a contention was taken by the accused that a third party cannot move a petition for cancellation of bail when the prosecution has not moved the application for cancellation of bail. In the decision reported in 2001 (Criminal) 565 SC in the case of Puran etc. vs. Rambilas & Another, wherein in a similar situation, a contention was taken by the accused that a third party cannot move a petition for cancellation of bail when the prosecution has not moved the application for cancellation of bail. Of course, counsel has also referred to the judgment of the Apex Court reported in AIR 1993 SC 280 in the case of Simranjit Singh Mann vs. Union of India and another, wherein a total stranger challenged the conviction and sentence of the accused under Article 32 of the Constitution of India. In the said judgment, the Apex Court has held that neither under the provisions of the Criminal Procedure Code nor under any other statute a third party or a stranger is permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial. As such, it was held that a total stranger, has no locus standi to challenge the conviction and the sentence awarded to the convicts in a petition under Article 32 of the Constitution of India. Referring to the case on hand, it has also relied upon the judgment in the case of R. Rathinam vs. State by DSP, District Crime Branch, Madurai and another reported in 2000 (2) SCC 391 , wherein a group of practising advocates presented petitions before the Division Bench. The Division Bench refused to exercise suo motu powers on the ground that the petition submitted by the advocates are not maintainable. However referring to sub-section (2) of Section 439of Cr.P.C. the Apex Court held that power is conferred on the Courts mentioned and that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves a petition. It is held that powers so vested in the High Court can be invoked either by the State or by any aggrieved party and also any member of the public, whether he belongs to any particular profession or otherwise, could move the High Court to remind it of the need to exercise its power suo motu. 10. By the amendment introduced in 2001 to Section 24(8) a proviso is being introduced so that the Court may permit the victim to engage an advocate of his choice to assist the prosecution. 10. By the amendment introduced in 2001 to Section 24(8) a proviso is being introduced so that the Court may permit the victim to engage an advocate of his choice to assist the prosecution. 11. The decision of the Apex Court reported in 2001 (Criminal) 565 SC in the case of Puran etc. vs. Rambilas & Another, refers to cancellation as per 439(2) and that there is nothing to indicate that the said power can only be exercised only if the State or investigating agency or a Public Prosecutor files an application. It is also observed, High Court can suo motu exercise the said power inherent in it for cancellation of bail. 12. The petitioner, of course whether she is wife of the deceased or kept mistress, ultimately showing her feeling as to the cause of death of the deceased who may happen to be a friend, moved an application seeking for cancellation of bail. Of course the Sessions Court either on facts or having considered the position of law, rejected the application for cancellation of bail. S. 439(2), Cr.P.C. provides for cancellation of bail and that power can be exercised either at the instance of the State or by any other aggrieved party. Ultimately an application has to be filed by the aggrieved party not necessarily by the state but State will also be a party and State has to take a positive role in conducting the matter. If any illegality has occurred in granting the bail, rather the aggrieved party can take a stand that injustice is being done or there is illegality in granting bail and it is not as if such a stand has to be supported by the prosecution in the absence of any such justification for granting bail. In the instant case, prior to death of the deceased he was not suffering from any ailment but after the alleged incident of assault taking place, might be for reasons to be assigned or otherwise, deceased was discharged from the hospital and admitted elsewhere for treatment of the injuries. In the factual situation the Sessions Court granted bail. In the instant case, prior to death of the deceased he was not suffering from any ailment but after the alleged incident of assault taking place, might be for reasons to be assigned or otherwise, deceased was discharged from the hospital and admitted elsewhere for treatment of the injuries. In the factual situation the Sessions Court granted bail. If it is argued by the victim or the complainant or interested persons that such an application for granting of bail is abuse of the process of the Court then necessarily as contemplated power under Section 439(2) of Cr.P.C. r/w Section 24(8) proviso, then necessarily even aggrieved can also move the High Court since by notification the State Government has permitted the aggrieved party to move for cancellation of bail. When such a power is conferred on the Sessions Court then necessarily the application filed by the petitioner for cancellation of bail before the Sessions Court was maintainable. So far as the disposal of the case on merits is concerned, the Sessions Court has to take into consideration the facts and the arguments advanced by both the parties and decide the case in accordance with law. 13. Accordingly, petition is allowed and matter is remanded to the Sessions Court to hear on the application for cancellation of bail. Of course the arguments to be advanced by the petitioner as an aggrieved also would assist in the form of assisting the prosecution and prosecution also has to defend the State. Ordered accordingly.