Research › Search › Judgment

Karnataka High Court · body

2016 DIGILAW 233 (KAR)

STATE OF KARNATAKA v. B. D. SANDEEPA

2016-03-03

A.V.CHANDRASHEKARA

body2016
Order : ORDER ON THE BAIL APPLICATION FILED UNDER SECTION 439(2), Cr.P.C. The State of Karnataka represented by Arkalgud police station has filed this application under Section 439(2), Cr.P.C. requesting this court to cancel bail granted to the respondent-accused by the Principal Sessions Judge, Hassan, in Crl.Misc. No.324/15 on 23.4.2015. Respondent will be referred to as accused in view of his ranking before the sessions court. 2. The learned sessions judge has allowed the application filed under Section 439, Cr.P.C. and has chosen to grant bail to the accused. The facts leading to the filing of the application under Section 439(2), Cr.P.C. are as follows: a) The case of the prosecution is that between 1.00 p.m. and 1.30 p.m. on 17.10.2014, the accused trespassed into the house of a married lady named Lokeshwari at Darikongalale village of Arkalgud Taluk. At that time, she was alone in her house with her female child aged 1 ½ years. Accused is stated to have assaulted her with a sickle on her neck and also dropped a grinding stone on her head and committed her murder. Thereafter, he took away her gold Mangalyachain and in order to screen himself from the punishment, he poured kerosene and after closing the door, set fire, as a result of which the child of the deceased also died due to burn injuries. b) A case came to be registered by the police in Crime No.315/15 for the offence punishable under Sections 302 and 201, I.P.C. During the course of investigation, accused was arrested and his voluntary statement was recorded while in police custody, on the basis of which incriminating materials came to be seized. c) Accused had filed regular bail application under Section 439, Cr.P.C. and the learned judge has chosen to grant bail, essentially on the ground that the alleged offences need to be established in a fullfledged trial and that the accused was in custody from 19.12.2014 and that no purpose would be served if he was detained in prison. Of course three conditions have been imposed directing him not to tamper or interfere with prosecution witnesses, to attend the court on all dates of hearing and not to leave the jurisdiction of the court without prior permission. 3. Several grounds have been raised by the State seeking cancellation of bail in this petition. Of course three conditions have been imposed directing him not to tamper or interfere with prosecution witnesses, to attend the court on all dates of hearing and not to leave the jurisdiction of the court without prior permission. 3. Several grounds have been raised by the State seeking cancellation of bail in this petition. It is contended that the learned judge has not properly considered the materials placed on record for the purpose of disposing of the bail application. It is contended that the learned judge has improperly exercised the jurisdiction vested in the court under Section 439, Cr.P.C. It is argued that though the case is based on circumstantial evidence, the circumstances are strong enough to indicate the involvement of this petitioner. It is argued that the statements of witnesses who had seen the accused coming to the village and being in the house of the deceased could not have been so easily while considering the bail application. 4. It is further argued that the accused is a relative of the deceased and when he had come to her house earlier, he had stealthily taken away a gold chain and gold rings and he was the suspect. On threatening him that a file criminal case would be filed, he returned only the gold chain and assured to return the gold rings and in spite of demand made by the deceased, he did not return. Since the deceased was often telling him to return the earrings, he thought of eliminating her to avoid returning the earrings. It is argued that soon after the murder, he took away her gold ornaments and they have been recovered at his instance based on the disclosure made by him while in police custody. The blood stained clothes worn by the accused have also been recovered and these are strong circumstances to make out a prima facie case for rejection of bail. It is argued that the order of the learned sessions judge is opposed to facts, law and probabilities. Hence. It is requested to cancel bail granted to the accused. 5. Heard the learned counsel for the respondent-accused at length. It is argued that the order of the learned sessions judge is opposed to facts, law and probabilities. Hence. It is requested to cancel bail granted to the accused. 5. Heard the learned counsel for the respondent-accused at length. Detailed objections have been filed on behalf of the accused contending inter alia amongst others, that all the conditions imposed on the accused have been meticulously complied with and he has neither tampered with nor threatened the witnesses in any manner, and that there are no merits in the present application. It is argued that he would neither abscond from the jurisdiction of the court nor would interfere with prosecution witnesses in any manner. 6. According to the learned counsel for the respondent-accused, the order so passed is a well-reasoned order and is not liable to be cancelled. It is argued that the circumstances so relied on by the prosecution will have to be established at the time of trial and no purpose would be served if he is detained in custody. Learned counsel has relied on a decision of the Hon’ble apex court in the case of STATE OF U.P. THROUGH C.B.I. .v. AMARMANI TRIPATHI ( AIR 2005 SC 3490 ). It is argued that in the present case, the accused has been enjoying the benefit of bail for quite a long time and that cancellation of bail at this stage would cause great hardship and inconvenience to him. 7. Reliance is placed on another decision rendered by this court in the case of STATE OF KARNATAKA .v. NARAYANAPPA (1991(1) K.L.J. 492). This decision is relied upon to contend that the accused was enlarged on 23.4.2015 and the present application came to be filed almost 4 months after bail was granted and therefore, no supervening circumstances are made out to cancel bail. 8. After going through the records and after hearing the learned HCGP and learned counsel for the accused, the following point arises for consideration of this court: Whether the petitioner-State has made out good grounds for cancellation of bail granted under Section 439, Cr.P.C.? REASONS 9. 8. After going through the records and after hearing the learned HCGP and learned counsel for the accused, the following point arises for consideration of this court: Whether the petitioner-State has made out good grounds for cancellation of bail granted under Section 439, Cr.P.C.? REASONS 9. Learned HCGP for the petitioner-State has relied on the decision of the Hon’ble apex court in the case of DOLAT RAM AND OTHERS .V. STATE OF HARYANA ([1995] 1 SCC 349) to contend that ‘rejection of bail in a non-bailable case at the initial stage and cancellation of bail already granted, have to be considered and dealt with on a different basis. ’It is further reiterated that very cogent and overwhelming circumstances are necessary to cancel the bail already granted. The Hon’ble apex court, in the said case, has laid down broad guidelines for cancellation of bail and they are as under: i) interference or attempt to interfere with the due course of administration of justice, ii) evasion, or attempt to evade the due course of justice or iii) abuse of the concession granted to the accused in any manner. 10. Yet another ground could be the probability of the accused absconding. Therefore caution given by the Hon’ble apex court in the above case is that bail once granted should not be cancelled in a mechanical manner without examining as to whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. 11. What are the factors to be kept in mind while granting bail in a case relating to the commission of a heinous offence have been considered by the Hon’ble apex court in the case of PRASANTA KUMAR SARKAR .v. ASHIS CHATERJEE AND ANOTHER ([2010] 14 SCC 496). In paragraph 9 of the said judgment at page 499, the Hon’ble apex court has broadly indicated the factors to be borne in mind while considering an application for bail relating to heinous offences. 12. In paragraph 9 of the said judgment at page 499, the Hon’ble apex court has broadly indicated the factors to be borne in mind while considering an application for bail relating to heinous offences. 12. In another case reported in [2009] 14 SCC 286 between MASROOR .v. STATE OF U.P. AND ANOTHER, the Hon’ble apex court has cautioned the court dealing with bail applications not to examine the evidence placed on record elaborately and not to give detailed reasons touching the merits of the case which may prejudice the accused; but there is a need to indicate in such order the reasons for prima facie concluding why bail is granted when he is charged of having committed a serious offence. The relevant observation of the Hon’ble apex court is reproduced below: 12. Normally this court does not interfere with the order of the High Court relating to grant or rejection of bail but in the instant case, having carefully gone through the impugned order, we are constrained to observe that the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application filed under Section 439 of the Code for grant of bail to the second respondent, warranting interference by this court.’ 13. In the present case, the reasons assigned by the learned sessions judge to grant bail are found only in paragraph 10 of the impugned order. Paragraph 10 is reproduced below for better clarification of the facts of the case: ‘10. I have bestowed my anxious consideration to the arguments put forth by the learned counsel for the petitioner and learned Public Prosecutor. I have carefully perused the records. I have also carefully perused the copy of charge sheet furnished by the learned counsel appearing for petitioner. The accusation against the petitioner herein is that the petitioner due to previous enmity committed the murder of deceased Lokeshwari by assaulting her with Sickle and in order to screen himself from the legal punishment, poured Kerosene on her and after closing the door lit fire, due to which the child of the deceased, who was aged 1 ½ years came into contact of fire flame and died. Whether the petitioner has committed the alleged offences or not, it needs elaborate trial. Whether the petitioner has committed the alleged offences or not, it needs elaborate trial. The petitioner is in custody since 19.12.2014 and at this stage, if the petitioner were detained in custody, no purpose would be served. Instead if the bail is granted to the petitioner with stringent conditions, apprehension of the prosecution can be met. Under such circumstances, I answer the above point in the ‘affirmative’. As could be seen from the records, the learned Public Prosecutor had filed detailed objections to the bail application in the sessions court and had even produced a copy of the charge sheet filed in the case. The case on hand discloses that the accused was subjected to custodial interrogation after he was arrested and several incriminating materials have been recovered at his instance. The sickle stated to have been used to cut the throat of the deceased and blood stained clothes of the accused at the time of committing the offence have been seized from the place where they had been concealed. 14. Though the case is based on circumstantial evidence, it cannot be said that the circumstances depicted in the charge sheet could be easily ignored in order to grant bail. The statements of material witnesses are also forthcoming and they disclose that the accused is not a resident of the village in which the incident took place. He had come to the village in the morning and was found entering the house of the deceased and within a few hours, the incident in question took place. 15. The statements of many material witnesses also point out to the fact that the accused had stealthily taken away gold chain and earrings of the deceased earlier and on being threatened to file a criminal case, he had returned the gold chain only and had assured to return gold rings. The materials placed on record would disclose that the deceased was insisting him to return the earrings and he had postponed the same on one pretext or the other. 16. As held by the Hon’ble apex court in the case of MASROOR (supra), the judge was expected to make only a superficial discussion based on the materials available on record. Though no elaborate discussion is required in regard to the materials placed on record, they should have been considered for the limited purpose of disposing the bail application. 16. As held by the Hon’ble apex court in the case of MASROOR (supra), the judge was expected to make only a superficial discussion based on the materials available on record. Though no elaborate discussion is required in regard to the materials placed on record, they should have been considered for the limited purpose of disposing the bail application. Mere observation that he has been in judicial custody and that charge sheet is filed and the circumstances will have to be established during trial, are not sufficient to grant bail in a serious offence of this nature. 17. Learned counsel for the respondent-accused has relied on the case reported in STATE OF U.P. THROUGH C.B.I. .v. AMARMANI TRIPATHI ( AIR 2005 SC 3490 ) in which the decision in the case of DHOLAT RAM is referred to and relied upon. Paragraph 18 of the decision in the case of STATE OF U.P. THROUGH C.B.I. v. AMARMANI TRIPATHI is relevant and is extracted below: ‘18. They also relied on the decision in S.N. Bhattacharjee v. State of West Bengal 2004 (11) SCC 165 where the above principle is reiterated. The decisions in Dolat Ram and Bhattacharjee cases (surpa) relate to applications for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read and Section 437, continue to be relevant. We, however, agree that while considering and deciding appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of application for cancellation of bail.’ 18. It is true that in an appeal against grant of bail, all aspects that are relevant under Section 439 or 437, Cr.P.C. continue to be relevant. It is not as though only violation of bail conditions and supervening circumstances would be decisive while considering an application for cancellation of bail. The court will not be inhibited to look into as to whether the court which had granted bail has really exercised the discretion vested in it judiciously in the light of the facts of the case and materials placed on record, while granting bail. 19. The court will not be inhibited to look into as to whether the court which had granted bail has really exercised the discretion vested in it judiciously in the light of the facts of the case and materials placed on record, while granting bail. 19. Suffice to state that the learned judge has not bestowed his mind to the materials placed on record and has not referred to the materials on record except stating that he has been in judicial custody for the past 6 months and that no purpose would be served in detaining him in custody. It can be said with certainty that the reasons assigned by the learned sessions judge in paragraph 10 of the impugned order are not at all convincing or cogent reasons to grant bail in a case of this nature. 20. In fact, the learned judge ought to have kept in mind the important factors while considering bail in thie light of the decisions in the case of PRASANTA KUMAR SARKAR .v. ASHIS CHATERJEE AND ANOTHER ([2010] 14 SCC 496) and in the case of RAM GOVIND UPADHYAY .v. SUDARSHAN SINGH ( (2002) 3 SCC 598 ). In all these cases, the Hon’ble apex court has indicated the following factors to be kept in mind while considering a bail application relating to serious offences: i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ii) nature and gravity of the accusation; iii) severity of the punishment in the event of conviction; iv) danger of the accused absconding or fleeing, if released on bail; v) character, behavior, means, position and standing of the accused; vi) likelihood of the offence being repeated; vii) reasonable apprehension of the witnesses being influenced; and viii) danger, of course, of justice being thwarted by grant of bail. 21. Thus viewed from any angle, the order granting bail in favour of the respondent-accused is not sustainable either in law or on facts. The case on hand is not fit to grant bail under Section 439, Cr.P.C.. Accordingly the petition is to be allowed and the impugned order granting regular bail is to be cancelled. 22. In the result, the following order is passed: ORDER The petition filed under Section 439(2), Cr.P.C. is allowed. The case on hand is not fit to grant bail under Section 439, Cr.P.C.. Accordingly the petition is to be allowed and the impugned order granting regular bail is to be cancelled. 22. In the result, the following order is passed: ORDER The petition filed under Section 439(2), Cr.P.C. is allowed. Bail granted to the respondent-accused by the Principal Sessions Judge, Hassan, on 23.4.2015 in Crl.Misc.324/15 under Section 439, Cr.P.C. is cancelled. The respondent-accused shall surrender before the concerned court at the earliest and the court to which the case is committed, shall take up the case for trial at the earliest. Nothing comes in the way of the concerned court in securing his presence by taking coercive steps. Registry to send a copy of this order to the court of sessions at Hassan at the earliest, for reference.