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2019 DIGILAW 581 (KAR)

Jayanth v. State of Karnataka

2019-03-07

H.B.PRABHAKARA SASTRY, K.N.PHANEENDRA

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ORDER : Dr. H.B. Prabhakara Sastry, J. ORDER ON I.A. No. 2/2018 1. I.A. No. 2/2018 is filed under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'the Cr.P.C) seeking suspension of sentence under appeal and enlargement of the appellants on bail. 2. The applicants in this I.A. are the appellants in the main matter, who have challenged their conviction passed by the Learned HI Additional District and Sessions Judge, Bengaluru Rural. District (sitting at Anekal) in S.C. No. 5057/2013, who has convicted them by his judgment dated 30.08.2018 for the offence punishable under Sections 324, 326 and 307 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'the IPC) and has sentenced them accordingly. 3. Heard the arguments from Learned Senior Counsel for the applicants and Learned State Public Prosecutor. Perused the materials placed before this Court including the Lower Court records. 4. The summary of the case of the prosecution as could be gathered from the materials available is that, on 24.03.2011, in the mid-night at 12.30 A.M., at Kaggalipura Road, behind Sri Shaneshwara Temple, in view of previous ill-will, the accused quarreled with C.W-1 - Sri. Venkatesh and in order to commit his murder, took him to the said place and accused No. 1 stabbed him with a knife to his chest, accused No. 2 stabbed him with the same knife to his left hand and accused No. 3 stabbed him with the same knife all over his body and thereafter, accused No. 1 stabbed his left hand 3-4 times by the same knife and thereby caused grievous injuries and attempted to commit his murder. 5. Admittedly, in this matter, a similar application filed by the very same applicants, after hearing both sides, was rejected by this Court by a detailed Order dated 25.09.2018. As such, the application under consideration is a second similar application filed by the same applicants for the same relief of suspension of sentence challenged under this appeal and seeking their enlargement on bail. 6. As such, the application under consideration is a second similar application filed by the same applicants for the same relief of suspension of sentence challenged under this appeal and seeking their enlargement on bail. 6. Learned Senior Counsel for the appellants in his arguments submitted that this Court on the earlier occasion has ignored the fact that, alleged material witnesses to the incident, who were PWs-6, 7 and 8, have totally given a go-by to the case of the prosecution, since they have turned hostile, still their evidence was relied upon and considered by the Trial Court in convicting the accused as well by this Court in rejecting the previous bail application of the appellants. Learned Senior Counsel also submitted that there is no material to attract Section 307 of IPC since the intention is totally lacking in the alleged incident on the part of the accused. This Court in the previous order while rejecting the similar application was carried away only by the reason that the appellants were ordered to undergo life imprisonment. Learned Counsel further submitted that without perusing the Lower Court records, earlier application has been disposed of by this Court, as such, there is no bar for this Court to consider a similar application for the same relief, since the same would not be a review of the judgment by this Court. Citing some of the judgments of Hon'ble Apex Court in his support, which would be considered at a later part in this order, Learned Senior Counsel submitted that the applicants have made out sufficient grounds for their enlargement on bail. 7. Learned SPP in his brief arguments submitted that, once this Court has considered a similar application made by the same applicants on its merits and has passed a detailed considered order, this Court cannot consider a similar application on the same grounds in the absence of any change in the circumstance or new materials being placed before the Court. He further submitted that this Court cannot sit as an Appellate Court upon its earlier order and re-appreciate the reasoning given by it. As such, if they are really aggrieved by the order of rejection of their application earlier by this Court, the only remedy available to the applicants is to approach the Hon'ble Apex Court. 8. He further submitted that this Court cannot sit as an Appellate Court upon its earlier order and re-appreciate the reasoning given by it. As such, if they are really aggrieved by the order of rejection of their application earlier by this Court, the only remedy available to the applicants is to approach the Hon'ble Apex Court. 8. This Court while rejecting a similar application filed by the same applicants, by its Order dated 25.09.2018 inter-alia has made the following observations: "The learned counsel for the appellants' submits that the injured as well as the eye witnesses examined by the prosecution mainly PWs-6 and 7 though initially supported the case of the prosecution, during their cross-examination, they resiled from their previous statement, as a result, no incriminating material is available in proof of the charges levelled against the appellants. The learned counsel has taken us through the portion of the cross-examination of PW-6, wherein the witness has stated that during the occurrence, he was fully drunk and therefore he was unaware of the assailants. A perusal of the impugned judgment reveals that the FIR is registered based on the information given by the injured in the hospital Taking into consideration the admissions made by PWs-6 and 7 and the testimony of the Medical Officer, the trial court has held that the offence has taken place as stated by the prosecution. The trial court has specifically taken note of the fact that PWs-6 and 7 were won over by the accused persons and therefore placing reliance on the decision of the Hon'ble Supreme Court of India in the case of GUDU RAM vs. STATE OF HIMACHAL PRADESH, reported in (2013) 11 SCC 546 , the learned Sessions Judge found it proper to convict the appellants/accused for the above offences, On going through the records received from the trial court, we are not inclined to hold a different view in the matter The facts proved in evidence indicate that the incident had taken place in a jhathra. At the earliest instance, the appellants were implicated and the overt-acts committed by them have been narrated by PWs-6 and 7 in their chief examination. In view of the answers elicited in their re-examination, their evidence does not get washed off altogether. The trial court has also referred to the corroborating circumstances. At the earliest instance, the appellants were implicated and the overt-acts committed by them have been narrated by PWs-6 and 7 in their chief examination. In view of the answers elicited in their re-examination, their evidence does not get washed off altogether. The trial court has also referred to the corroborating circumstances. Therefore, merely on account of hostility exhibited by these witnesses, that too, on account of the composition entered into with the accused, in our considered view, the sentence awarded by the trial court cannot be suspended during the pendency of this appeal and the appellants are not entitled to be admitted to bail." 9. A perusal of the above reasoning given by this Court earlier clearly go to show that, this Court has given its consideration to all the points of arguments agitated before it, which have been repeated by Learned Senior Counsel today also. The alleged hostility of some of the prosecution witnesses including the injured eye witness and the alleged hostility of PW-6, who is shown to have stated during his evidence that he was fully drunk and as such, he was unaware of the assailants, was also considered by this Court and after meeting all the points of arguments addressed before it including the important aspects to be considered while dealing with an application filed under Section 389 of Cr.P.C., it has passed a considered order. As such, the first point of argument of Learned Senior Counsel for the appellants that the hostility of some of the prosecution witnesses, more particularly, PW-6 was not considered earlier by this Court is not acceptable. 10. The second point of argument of Learned Senior Counsel that this Court had no access to Lower Court records while considering the earlier application is not acceptable for the reason that the very Order dated 25.09.2018, makes it very clear that this Court has gone through the records received by the Trial Court, as well it has also gone through the portion of the cross-examination of PW-6, towards which, the Learned Counsel for the appellants had drawn the attention of this Court. It is only after perusing the entire materials placed before it, this Court has passed a considered and reasoned order. Therefore, the second argument of Learned Senior Counsel is also not acceptable. 11. It is only after perusing the entire materials placed before it, this Court has passed a considered and reasoned order. Therefore, the second argument of Learned Senior Counsel is also not acceptable. 11. The third point of the argument that this Court was carried away by the notion that since the applicants/appellants were sentenced for life imprisonment, they were not entitled for bail, also has to be considered as a self imagination made by the applicants herein. We are of the view that the Order dated 25.09.2018, nowhere gives any such impression. 12. Learned Senior Counsel relied upon the judgment of Hon'ble Apex Court in the case of VIKRAMJIT SINGH@ VICKY vs. STATE OF PUNJAB LAWS (SC) 2006-11-93 and drawing our attention to paragraph Nos. 21 to 24 of the said judgment submitted that even in the case on hand also, the Trial Court has given a complete go-by to the cross-examination of material witnesses including PW-6, which has not been considered by this Court in its earlier Order dated 25.09.2018. As such, the present application has been filed. With great respect to the said judgment relied upon by the Learned Senior Counsel, it is submitted that, the paragraphs towards which our attention was drawn in the said judgment, more particularly, to paragraph Nos. 21 to 24, clearly go to show that the Hon'ble Apex Court after considering the facts and circumstances of the case and confining to the case, was pleased to order for release of accused unless they were wanted in any other case. 13. In the case on hand, since this Court has already appreciated the materials placed before it for the purpose of considering the application under Section 389 of Cr.P.C., we do not find any reason that the reasoning given by this Court earlier on 25.09.2018, is without application of judicious mind. 14. Learned Senior Counsel for the applicants relied upon another judgment of Hon'ble Apex Court in the case of BABU SINGH AND OTHERS vs. THE STATE OF UTTAR PRADESH AIR 1978 SC 527 , and drew our attention to a portion of paragraph Nos. 2 and 24 of the said judgment, wherein, the Hon'ble Apex Court was pleased to observe that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving further developments and different considerations. 2 and 24 of the said judgment, wherein, the Hon'ble Apex Court was pleased to observe that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving further developments and different considerations. It was also pleased to observe at paragraph No. 24 that the practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and by the Hon'ble Apex Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. Following the observations made by their Lordships in the said BABU SINGH case (supra), it can be noticed that though there is no bar for an applicant to file a successive application seeking the relief of suspension of sentence and his enlargement on bail, however, he is required to show the changed circumstances, which was not in existence at the time of consideration of his previous application/applications. Admittedly, in the case on hand, there is no change in the circumstances. All that the applicants have stated in the present application have already been canvassed in their previous application, which was disposed of by this Court on 25.09.2018, on its merits. 15. The argument of Learned Senior Counsel for the appellants that, the possible delay that would be caused in the disposal of the appeal would be a valid ground for enlargement of the applicants on bail is also not acceptable. The Hon'ble Apex Court in the case of CHENNA BOYANNA KRISHNA YADAV vs. STATE OF MAHARASHTRA AND ANOTHER: (2007)1 SCC 242 , was pleased to observe that though mere period of incarceration and/or likelihood of delays in conclusion of trial are not by themselves singly or conjointly enough for grant of bail, however, both those factors may be taken into consideration. Each case has to be tested on its merits with reference to delay and delay is not invariably occurs in all the cases, it all depends upon each case. Each case has to be tested on its merits with reference to delay and delay is not invariably occurs in all the cases, it all depends upon each case. As such, we cannot presume certain things by ourselves for the benefit of the applicants. 16. Lastly, Learned Senior Counsel relied upon the judgment of Hon'ble Apex Court in the case of KISHORILAL vs. RUPA LAWS(SC)-2004-9-9 and submitted that one of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. He submitted that the previous Order dated 25.09.2018 is bereft of recording any reasons for rejecting the application. The Hon'ble Apex Court in the case of KISHORI LAL (supra) at paragraph No. 4 of the said judgment was pleased to observe that the requirement of recording reasons in writing while dealing with an application under Section 389 of Cr.P.C., clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 17. In the case on hand, as already observed above, the Order dated 25.09.2018, the extract of which is reproduced clearly go to show that it is only after considering all the grounds agitated before this Court, earlier application has been disposed of with a reasoned order. As such, the Order dated 25.09.2018 cannot be considered as an order without recording any reasons which entails the applicants to reiterate and re-agitate the same contentions in the present application also. 18. Before parting with, we feel it appropriate to refer to an observation made by their Lordships of the Hon'ble Apex Court in the case of KALYAN CHANDRA SARKAR ETC., vs. RAJESH RANJAN ALIAS PAPPU YADAV AND ANOTHER: AIR 2005 SC 921 , wherein, at paragraph No. 19, the Hon'ble Apex Court was pleased to observe as below: "The principles of res judicata and such analogous principles although are not applicable in a criminal proceedings, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate Bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. 19. In the instant case, merely because there would be no bar for filing successive bail applications under Section 389 of Cr.P.C., that too, in the absence of any change in the circumstances, such subsequent application, if considered and entertained as though it is a fresh application and proceeded to review the previous order, it affects the judicial discipline of the Court and also it leads to the possibility of forum hunting. As such, in our considered opinion, a similar application filed by the very same applicants since was considered on its merit by a detailed and considered Order dated 25.09.2018 and since the applicants have failed to make out any change in the circumstances or show any further developments in the matter, we are of the view that the present application does not deserve to be allowed. Accordingly, I.A. No. 2/2018 stands dismissed as devoid of merits.