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2020 DIGILAW 1216 (KAR)

Prakash v. Sanjay Gurusidd Konnuri Patil

2020-06-24

ASHOK G.NIJAGANNAVAR

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JUDGMENT Ashok G Nijagannavar, J. - This petition is filed under Section 439(2) of Cr.P.C. by the State to set aside the order dated 07.06.2019 passed in Criminal Miscellaneous No.1256/2019 by the learned II Additional District and Sessions Judge, Belagavi and to cancel the regular bail granted to respondents No.1 and 2 and also to direct to the concerned police to arrest respondents No.1 and 2-accused and commit to custody. 2. The petitioner before this Court is the injured. The facts leading to this petition are that the learned II Additional District and Sessions Judge, Belagavi passed an order dated 07.06.2019 in Criminal Miscellaneous No.1256/2019 granting regular bail to accused No.1 and 2 subject to terms and conditions. Being aggrieved by the order passed by the learned Sessions Judge, the complainant-victim has filed the petition contending that the impugned order granting bailis contrary to law and facts of the case. The learned Sessions Judge has committed error in granting bail without looking into the records and by making observation with regard to the irrelevant considerations. Thus, the impugned order is liable to be set aside. 3. Heard the learned counsel for the petitioner, learned counsel for respondents No.1 and 2 and learned HCGP for respondent No.3- State. Perused the impugned order and other prosecution records available at this stage. 4. The learned counsel for the petitioner submitted that the victim sustained seven injuries on the vital parts of the body and the recovery of the weapon used for commission of the offence are not at all considered by the trial Court. The learned Sessions Judge without noticing the gravity of the offences committed by the accused, has mechanically passed order granting bail, which is not proper and justified. The learned counsel for the petitioner has relied on two decisions in support of his contentions. 5. Per contra, the learned counsel for respondents-accused strenuously contended that the learned Sessions Judge has passed the order considering the case diary, medical records and has come to the conclusion that the accused are entitled for bail. At this stage, it cannot be termed as the order without reasons. After granting of bal as per order dated 07.06.2019, the complainant-victim had approached the Sessions Court challenging the legality of the order passed, but the same has been rejected. At this stage, it cannot be termed as the order without reasons. After granting of bal as per order dated 07.06.2019, the complainant-victim had approached the Sessions Court challenging the legality of the order passed, but the same has been rejected. Prior to that, the complainantvictim had approached the Hon'ble High Court and by suppressing the said facts, he had approached the Sessions Court. Since the petitioner has not challenged the order passed by the Sessions Court rejecting the petition filed by him for cancellation of bail, the present petition is not maintainable. There are no valid grounds to show that the Sessions Court has committed error in passing the bail order. The learned counsel has relied on a decision reported , in the case of Myakala Dharmarajam v. State of Telangana and another, (2020) 2 SCC 743 . 6. It is well established principle that very cogent and overwhelming circumstances are necessary for cancellation of bail. In catena of decisions, the Hon'ble Supreme Court has held that the power to grant bailis not to exercise as if the punishment before the trial is being imposed. That is the cardinal principle generally adopted by the sub-ordinate courts while granting the bail . 7. The learned counsel for the petitioner has fairly conceded that the petition is filed only for challenging the legality of the order passed by the learned Sessions Judge. Having regard to the submission made by the learned counsel for the respondents and the learned HCGP, this Court has gone through the impugned order passed by the Sessions Court. 8. In a decision reported in the case of Brij Nandan Jaiswal V/s Munna Alias Munna Jaiswal and another, (2009) 1 SCC 678 , the Hon'ble Supreme Court has observed as under: 12. It is now a settled law that the complainant can always question the order granting bailif the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge whie granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary. 9. In another decision reported in the case of Dinesh M.N. (S.P.) V/s State of Gujarat, (2008) 5 SCC 66 , the Hon'ble Supreme Court has observed that the Court dealing with an application for cancellation of bail under Section 439(2) Cr.P.C. can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail. 10. The Hon'ble Supreme Court in the case of Myakala Dharmarajam v. State of Telangana and another, (2020) 2 SCC 743 by adverting to a decision in the case of Kanwar Singh Meena v. State of Rajasthan, (2012) 12 SCC 180 : (2013) 4 SCC (Cri) 614 has held as under : "9. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bailignores relevant materialindicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail." 11. Learned counsel for the petitioner has tried to point out that the Sessions Court has granted bail with irrelevant considerations. Thus, it is necessary to ascertain whether the bail is granted without referring to the materials placed on record or contrary to the prosecution records and the medical records. The learned Sessions Judge has granted bail based on the medical records, the certificate issued by the Vi jay Hospital discloses that injury No.1, 2 and 3 are simple in nature. Thus, it is necessary to ascertain whether the bail is granted without referring to the materials placed on record or contrary to the prosecution records and the medical records. The learned Sessions Judge has granted bail based on the medical records, the certificate issued by the Vi jay Hospital discloses that injury No.1, 2 and 3 are simple in nature. On going through the entire case diary and the medical certificate, the Court has come to the conclusion that the accused are entitled for bail subject to certain terms and conditions. 12. In the bail order, the learned Sessions Judge has observed that the sickle said to have been used for commission of the offence has not been recovered by the police, the case diary records produced by the police do not disclose that the injured petitioner has sustained the grievous injuries. The said record also discloses about the dispute regarding the family properties. Further the learned Sessions Judge has observed that the offence under Section 307 is not punishable with death or life imprisonment. The accused is in judicial custody since 18.05.2019; his presence is not required for custodialinterrogation. 13. The law regarding grant or refusal of bailis very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. 14. At this stage, there are no grounds to hold that irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The material point should be of substantial nature and not of trivial nature. (c) Prima facie satisfaction of the court in support of the charge. 14. At this stage, there are no grounds to hold that irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The material point should be of substantial nature and not of trivial nature. Thus, the order passed by the Sessions Court cannot be termed as perverse. Considering the submission made on behalf of the respondents, this Court is of the view that at this stage no supervening circumstances have been made out to warrant the cancellation of bail. There is no cogent material to indicate that the learned Sessions Judge has passed the order contrary to the material placed on record or without referring to the prosecution records. Under these circumstances, the impugned order granting bail cannot be treated as perverse. But however looking to the gravity of the offence and the nature ofinjuries caused to the victim and also the rivalry between the parties, this Court is of the view that some more stringent conditions are required to be imposed. 15. For the above reasons, this Court holds that the order of the learned Sessions Judge granting bail cannot be faulted with. However, considering the facts and circumstances, this Court is of the view that the quantum of personal and surety bond fixed by the Sessions Court should be enhanced. Accordingly, the bond amount is enhanced to Rs.2,00,000/-. Respondents No.1 and 2/accused and sureties are directed to execute bond for the said amount. The accused shall give attendance to the concerned police station every alternative day from the date of this order. The accused shall not cause any obstruction or commit any wrongful acts infront of the house of the victim complainant. Compliance of the condition to execute bond shall be effected after receipt of certified copy of the order or when the courts start functioning regularly. In the event of any violation of the conditions, the bail order granted by the Sessions Court stands cancelled automatical ly. Subject to the above modification, the petition shall stand disposed of.