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2018 DIGILAW 769 (KAR)

State of Karnataka by Holenarasipura Town Police Station v. Manjunath N. S/o Nanjundaiah

2018-07-04

JOHN MICHAEL CUNHA

body2018
ORDER : 1. These three petitions are filed under Section 439(2) of Cr.P.C. seeking cancellation of bail order passed in favour of accused Nos. 6, 4 and 2 respectively in Crl. Pet. Nos. 6608/2017, 6875/2017 and 7621/2017 dated 07.10.2017, 07.10.2017 and 17.10.2017. 2. Heard Sri Ashok N Naik, learned Special Public Prosecutor on behalf of the petitioner/ State and Sri CH Jadhav, Senior counsel on behalf of respondent/accused No. 6 and Sri Hashmath Pasha, learned counsel for respondent/accused No. 4 and Sri RP Chandrashekar, learned counsel for respondent/accused No. 2. 3. Petitioner/State has sought for cancellation of bail order passed in favour of accused Nos. 4 and 6 mainly on the ground that the earlier application filed by them under Section 439 of Cr.P.C., was rejected by a considered the order dated 23.11.2016 (Annexure-E) in Crl. Pet. 5995/2016. In spite of it, the case of the very same accused Nos. 4 and 6 was once again considered by this Court and by a common order dated 07.10.2017 (Annexure A), the bail application filed by them came to be allowed. 4. Learned Public prosecutor submits that in respect of accused Nos. 2 and 4, the provisions of Karnataka Control of Organized Crimes Act, 2000 (‘KCOC Act’ for short) were invoked. Under the said circumstances, in view of the rejection of the earlier petition, this Court could not have passed an order on the successive petition filed by accused Nos. 4 and 6. Further, while enlarging accused Nos. 4 and 6, this Court has failed to record a finding with regard to the requirements of Section 22(4) of the KCOC Act and therefore, on both these grounds, the bail order passed in favour of accused Nos. 4 and 6 is liable to be cancelled by this Court. 5. I am unable to accede to the arguments of the learned Special Public Prosecutor, Sri Ashok N Naik in this regard. The correctness and legality of the order passed by the Coordinate Bench of this Court cannot be assailed on the guise of seeking cancellation thereof. Grant of bail and cancellation of bail so granted have to be considered and dealt with on different basis. If for any reason, the petitioner is aggrieved by the bail order passed in favour of accused Nos. 4 and 6 on the successive bail petition, the remedy of the petitioner is to appeal against the order granting bail. Grant of bail and cancellation of bail so granted have to be considered and dealt with on different basis. If for any reason, the petitioner is aggrieved by the bail order passed in favour of accused Nos. 4 and 6 on the successive bail petition, the remedy of the petitioner is to appeal against the order granting bail. Judicial propriety does not permit this Court to review the order passed by the Coordinate Bench of this Court. 6. Hence, the petition filed on behalf of accused Nos.4 and 6 in Crl. Pet. No. 3277/2018 and Crl. Pet. No. 3278/2018 are liable to be dismissed and are accordingly dismissed. Crl. Pet. No. 2484/2018 7. In so far as the bail order passed in favour of accused no. 2 is concerned, the main contention urged by the learned Special Public Prosecutor is that accused No. 2 was a kingpin in the large scale question paper leakage scam. As many as seven charge sheets were filed against him for similar offences in a span of ten years prior to the registration of the instant case. The details of those case are furnished in Para 10 of the petition. This Court while considering the bail petition moved by accused No. 2 in Crl. Pet. No. 6875/2017 was apprised of the said fact but during the course of hearing, learned counsel appearing for accused No. 2 made a false submission before the Court, that accused No. 2 is acquitted of the similar charges in earlier cases and the Court relied on the said submission and admitted him to bail, though in view of the provision of Section 22(4) of the KCOC Act, accused No. 2 was not entitled for bail. 8. It is the submission of the learned counsel that the statement made before this Court on behalf of accused No. 2 was not only a misstatement but a deliberate suppression of fact. It is a matter of record, that as on the date of passing order by this Court in Crl. Pet. No. 6875/2017, three cases were pending against the petitioner. Hence, respondent/accused No. 2 having played fraud on the Court, the order passed in his favour is vitiated, therefore, solely on this ground, the bail granted to accused No. 2 is liable to be cancelled. Pet. No. 6875/2017, three cases were pending against the petitioner. Hence, respondent/accused No. 2 having played fraud on the Court, the order passed in his favour is vitiated, therefore, solely on this ground, the bail granted to accused No. 2 is liable to be cancelled. In support of his arguments, learned Special Public Prosecutor has relied on the decision of the Hon’ble Supreme Court in the case of Harjeet Singh alias Seeta vs. The State of Punjab and another, AIR 2002 SC 281 . 9. Refuting the above contentions, the learned counsel appearing for accused No. 2, Sri R P Chandrashekar has drawn my attention to Para 9 of the order passed by this Court and would contend that the submission of the seven charge sheets against accused No. 2, was brought to the notice of the Court and the same is reflected in Para 9 of the said order. Further, this Court referred to the contents of the charge sheet at column No. 17, wherein it was unequivocally mentioned that accused No. 2 was acquitted of the charges in four cases out of five cases registered against him. As per the charge sheet, only one case namely C.C. No. 56/2013 was pending trial before the A.C.J and C.J.M at Tumakuru. Therefore, there was no suppression of fact whatsoever as contended by the learned Public prosecutor and hence, seeks for dismissal of the petition. 10. Considered the submissions and perused the order passed by this Court. The petitioner-State has sought for cancellation of bail order mainly on the ground of suppression of facts. Even though the order in Crl. Pet. No. 6875/2017 was passed by the Coordinate Bench of this Court, the learned Judge, who disposed of the said matter having retired on attaining superannuation, I have considered the submissions. On perusal of the order, it is noticed that the registration of five cases against accused No. 2 was specifically pleaded by the parties before this Court. Para 9 of the order makes a reference to the contentions of the parties as well as the various cases registered against accused No. 2. Therefore, it cannot be said that while passing the order in question this Court was not in the knowledge of the previous charge sheets filed against accused No. 2. 11. In this context, if the contents of column no. Therefore, it cannot be said that while passing the order in question this Court was not in the knowledge of the previous charge sheets filed against accused No. 2. 11. In this context, if the contents of column no. 17 of the charge sheet are perused, it is seen that the details of the cases in which accused no. 2 is acquitted are narrated with reference to the case number and the date of acquittal order passed by the respective Court, therefore it cannot be said that the respondent/accused no. 2 has suppressed any material fact before this Court. If for any reason, the Court has found that the pendency of one case does not attract the provisions of KCOC Act, this Court cannot go into the correctness or legality of the said order. From the reading of the order passed by this Court it is clear that this Court was aware of the pendency of seven charge sheets against accused No. 2. 12. This Court has adverted it’s mind to the facts of the case and has referred to the charge sheet material and has passed the order. Therefore, I am unable to accept the submission of the learned Public prosecutor that respondent/accused No. 2 has played fraud and suppressed the material fact to obtain the order in his favour. As a result, I do not find any justifiable reason to cancel the bail order passed in the favour of accused No. 2. 13. Accordingly, the petition is dismissed.