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2018 DIGILAW 1237 (KAR)

Libert A. Vaz v. State of Karnataka

2018-12-21

MOHAMMAD NAWAZ

body2018
ORDER : 1. The petitioner has filed this petition under Section 439 of Cr.P.C. praying to release him on bail in C.C. No.234/2017 pending on the file of Senior Civil Judge and J.M.F.C., at Hangal, for the offences punishable under Sections 191, 193, 194, 195, 463, 466 read with Section 34 of I.P.C. 2. I have heard the learned counsel appearing for the petitioner, Sri J. S. Shetty and the learned H.C.G.P. appearing for the respondent/State, Sri Raja Raghavendra Naik. 3. The facts leading to the filing of the petition are that, during the trial proceedings in S.C. No.28/2015 on the file of Principal District and Sessions Judge, Haveri, the learned Sessions Judge noted that P.W.14 Dr. Nagaraj Kuri had deviated from the evidence available on record and the learned Sessions Judge while passing the judgment dated 18.09.2017, at paragraphs No.22 to 31 observed that there was some collusion between P.W.14 Dr. Nagaraj Kuri, P.W.15 Abdulkhadar Rajesab Mundinamani (P.W.16) and P.W.18 Mahadeva Lakshman Yeligar with pending clerk i.e., petitioner herein and accordingly opined that the same has to be enquired into by the jurisdictional Magistrate holding that the aforesaid persons have committed a serious crime by tampering the Court record and they have committed the of fences punishable under Sections 194, 195, 463 and 466 read with Section 34 of I.P.C. The learned Sessions Judge observed that the Court has to proceed as per the provisions of Section 195(1)(b)(i)(ii) and under Section 340 of Cr.P.C. According to the learned Sessions Judge, the Doctor’s endorsement on the statement of the victim at Ex.P-24 though not obtained at the time of recording of the said statement, which is the dying declaration of the victim, however subsequently with the collusion of the accused persons, the said endorsement was made. It was observed that in the certified copy obtained by the accused marked at Ex.D-1 the said endorsement was not seen which was however found in the original statement at Ex.P-24. 4. The proceedings were initiated on the file of the Senior Civil Judge and J.M.F.C., Hangal numbered as C.C. No.234/2017 against accused Nos.1 to 4. Accused No.1 is the Medical Officer, accused No.2 the then H.C. of Hangal Police Station, accused No.3, the then P.S.I. of Hangal Police Station and accused No.4 the present petitioner, the then S.D.A. of Senior civil Judge and J.M.F.C., Hangal. 5. Accused No.1 is the Medical Officer, accused No.2 the then H.C. of Hangal Police Station, accused No.3, the then P.S.I. of Hangal Police Station and accused No.4 the present petitioner, the then S.D.A. of Senior civil Judge and J.M.F.C., Hangal. 5. The learned counsel appearing for the petitioner submitted that the petitioner is innocent and he has not committed any offence as alleged against him and the case filed against him is wholly false and that the petitioner has been unnecessarily implicated in the said case. He submits that admittedly the petitioner was on leave from 02.09.2014 to 04.09.2014 and during that time the records were not in his custody. He further submits that the evidence of the Medical Officer who was examined as P.W.14 was not properly considered. On the other hand, the said evidence does not implicate the petitioner even remotedly. He submitted that on an earlier occasion this Hon’ble Court rejected the anticipatory bail petition in Crl.P. No.100875/2018 and thereafter he approached the Hon’ble Apex Court and the Hon’ble Apex Court by an order dated 21.08.2018, after observing that if the petitioner surrenders within two weeks and applied for regular bail, the bail application shall be considered forthwith. Hence, he submits that the petitioner has surrendered as per the direction of the Hon’ble Apex Court within the time stipulated therein and accordingly, seeks to enlarge the petitioner on bail. 6. Per contra, the learned H.C.G.P. contended that there are serious al legations regarding tampering of the Sessions Case records and the learned Sessions Judge has made a detailed observation in the judgment dated 18.09.2017 passed in S.C. No.28/2015 in paragraphs No.22 to 31. He submits that the petitioner being a Court official has colluded with accused Nos.1 to 3 and committed the offences, and therefore, he submits that the petitioner is not entitled for the relief which he has sought in this petition and accordingly seeks to dismiss the petition. 7. He submits that the petitioner being a Court official has colluded with accused Nos.1 to 3 and committed the offences, and therefore, he submits that the petitioner is not entitled for the relief which he has sought in this petition and accordingly seeks to dismiss the petition. 7. From the material on record, it is seen that the learned Sessions Judge while passing the judgment in S.C. No.28/2015 vide judgment dated 18.09.2017 has observed at para 31, that the FIR Ex.P-26, the statement of the victim Ex.P-24, with the connected order sheet and other papers were in custody of the then criminal pending clerk of JMFC, Hangal and further observed that forging the document or record of the Court by the outsiders i.e., P.Ws.14, 15 and 18 in collusion with the present petitioner is a serious offence and the same has been committed by the aforesaid persons, which need to be enquired into by the jurisdictional Magistrate. The said observations were made on the basis that Ex.P-24(a) endorsement was not there on Ex.P-24, and therefore holding that the same has been subsequently created by P.W.14 Dr. Nagaraj Kuri, Medical Officer, P.W.15 Abdulkhadar Rajesab Mundinamani, (P.W.16) the then H.C. and P.W.18 Mahadeva Lakshman Yeligar, the then P.S.I. in collusion with the pending clerk i.e., petitioner herein. 8. The petitioner had approached this Court under Section 438 of Cr.P.C. seeking anticipatory bail. However, this Court by an order dated 18.06.2018 dismissed the said petition. The Hon’ble Apex Court in Special Leave to Appeal (Crl.) No.6535/2018, while dismissing the said petition, observed that if the petitioner surrenders within two weeks and applies for regular bail, the bail application shall be considered forthwith. 9. The learned counsel for the petitioner has submitted that the petitioner has surrendered before the jurisdictional Magistrate within the time stipulated by the Hon’ble Apex Court. The order sheet in C.C. No.234/2017 shows that the petitioner/accused No.4 voluntarily surrendered before the learned Magistrate on 03.09.2018 i.e., within a period of two weeks of the order passed by the Hon’ble Apex Court. Since then he is in judicial custody. It is relevant to see that accused Nos.1, 2 and 3 are already enlarged on bail by this Court. Accused No.1 was released on anticipatory bail by an order dated 05.03.2018 in Crl.P. No.102736/2017. Accused No.2 was released on anticipatory bail by an order dated 28.03.2018 in Crl. Since then he is in judicial custody. It is relevant to see that accused Nos.1, 2 and 3 are already enlarged on bail by this Court. Accused No.1 was released on anticipatory bail by an order dated 05.03.2018 in Crl.P. No.102736/2017. Accused No.2 was released on anticipatory bail by an order dated 28.03.2018 in Crl. P. No.100150/2018 and accused No.3 was released on anticipatory bail in Crl.P. No.100529/2018. It is also brought to the notice of the Court that the proceedings in C.C. No.234/2017 arising out of P.C. No.115/2017 on the f i le of Senior Civil Judge and J.M.F.C., Hangal has been stayed by this Court in Crl. P. No.100247/2018 and connected petitions f i led by other accused persons. 10. Considering the entire facts and circumstances of the case, I am of the view that the petitioner is entitled for bail and accordingly, I pass the following : ORDER i. The petition is allowed. ii. The petitioner shall be released on bail in C.C. No.234/2017 arising out of P.C. No.111/2017 on the f i le of Senior Civil Judge and J.M.F.C., Hangal, for the offences punishable under Sections 191, 193, 194, 195, 463, 466 read with Section 34 of I.P.C. subject to the following conditions : a. The petitioner shall execute a personal bond in a sum of Rs.1,00,000/- with two sureties for the like-sum to the satisfaction of the learned Magistrate. b. The petitioner shall not either directly or indirectly tamper with the prosecution witnesses and shall not hamper the case of the prosecution in any manner. c. The petitioner shall be regular in attending the Court proceedings.