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2020 DIGILAW 901 (KAR)

Ramangouda v. State Of Karnataka

2020-05-22

E.S.INDIRESH

body2020
JUDGMENT 1. This petition is filed under Section 439(1)(b) of the Code of Criminal Procedure and the petitioner has sought for setting aside the conditions of bail by removing condition (iv) in the order dated 05th May, 2020 passed by this Court in Criminal Petition No.2200 of 2020. The main grievance of the petitioner is that he is aged 85 years and is a permanent resident of Hukkinala village, Shahpur Taluk, Yadgir District and is accused in Crime No.9 of 2019 pending consideration before the Principal Sessions Judge at Dharwad. 2. The learned counsel for the petitioner submits that though this Court has granted bail to the petitioner on 05th May, 2020 the petitioner is accused No.4 in crime No.9 of 2019 in E & N Crime Police Station, Hubballi-Dharwad for the offence punishable under Section 20(b)(ii)(c) of NDPS Act and since the petitioner is the resident of Yadgir District and he is not able to move to his residence, in view of condition (iv) imposed by this Court by order dated 05th May, 2020. Therefore, he prays for removal of condition (iv) in the aforesaid order. 3. The learned High Court Government Pleader appearing for the State opposes the petition. 4. Having heard the learned counsel for the petitioner and after considering the factual aspects of the case, though this Court has granted bail to the petitioner herein on 05th May, 2020, but the said order of bail was subject to the condition (iv) which is as under: '(iv) The petitioner (A4) shall not leave the jurisdiction of the trial Court without prior permission, till the case registered against him is disposed of.' 5. It is an undisputed fact that the petitioner is aged about 85 years and is an agriculturist by occupation. He is the resident of Hukkinal village, Shahapur Taluk, Yadgir District. However, the Crime No.9 of 2019, alleged to have been made against the petitioner, is before the Principal Sessions Judge, Dharwad. The perusal of the condition (iv) in the order dated 05th May, 2020 passed in Criminal Petition No.2200 of 2020 would clearly indicate that the petitioner is restrained from moving away from the jurisdiction of the trial Court (Principal Sessions Judge, Dharwad) and to reside in his native place at Hukkinala village, Yadgir District. The perusal of the condition (iv) in the order dated 05th May, 2020 passed in Criminal Petition No.2200 of 2020 would clearly indicate that the petitioner is restrained from moving away from the jurisdiction of the trial Court (Principal Sessions Judge, Dharwad) and to reside in his native place at Hukkinala village, Yadgir District. In that view of the matter and in prevailing circumstances of COVID-19; and in the peculiar factual aspect of the case that the petitioner is aged about 85 years and is a permanent resident of Hukkinal village, Shahpur Taluk, Yadgir District and also taking into consideration the circumstances of the case in its totality; and in the ends of justice, the petition is liable to be allowed removing the condition (iv) imposed in the order dated 05th May, 2020. 6. Suffice it to say that Constitution Bench of the Honble Supreme Court in the case of Gurbaksh Singh v. State of Punjab reported in AIR 1980 SC 1632 has held that 'the bail is a tool in the hands of accused against an arbitrary detention/arrest by the authorities. Bail balances between the individual liberty and interest of social order.' It is observed in the aforesaid decision that it is the legal principle that the accused is to be treated innocent until guilt is proved. Further, in the said decision, at paragraph 26, it is observed as follows: '26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair.' 7. Further, the Honble Supreme Court in the case of Gudikanti Narasimhulu v. Public Prosecutor reported in AIR 1978 SC 429 has clarified that the bail includes releasing of a person on personal bond or surety and observed that refusing bail deprives the person of personal liberty guaranteed under Article 21 of the Constitution of India. 8. In the instant petition, though this Court has granted bail to the petitioner herein, however the petitioner is not able to move to his residence on the ground that the petitioner is the resident of Hukkinal village, Shahpur Taluk, Yadgir District and the Crime is registered before the Principal and Sessions Judge at Dharwad. Having considered the concept of liberty as enunciated by the Honble Supreme Court in the above cases, petition deserves to be allowed by removing the condition (iv) imposed in the order dated 05th May, 2020 passed in Criminal Petition No.2200 of 2020. Accordingly Petition is allowed.