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2022 DIGILAW 127 (KAR)

Anuradha Baliga v. Mangalapady Naresh Shenoy

2022-02-02

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This petition is filed under Section 439(2) of Cr.P.C. praying this Court to cancel the bail granted to accused No. 1 for violating the conditions imposed by this Court in Crl.P. No. 6189/2016 dated 15.09.2016 and order to take the accused No. 1 into custody and keep in detention till the conclusion of the trial. 2. The main contention of the learned counsel for the petitioner before this Court is that respondent No. 1 was arraigned as accused in Cr. No. 35/2016 for the offence punishable under Section 302 of IPC on account of murder of one Vinayaka Baliga. This Court granted bail in favour of respondent No. 1 with conditions vide order dated 15.09.2016 and respondent No. 1 has violated condition Nos. (g) and (i) of the said order passed by this Court, which read thus: "(g) Petitioner shall appear before the concerned court on all the future dates of hearing except on the dates on which he is exempted from appearing for valid reasons. (i) Petitioner shall keep himself away from all the activities and affairs of Shri Venkataramana Temple, Car Street, Mangaluru and Kashimutt, Mangaluru, and from the affairs and activities of all the committees attached to the said temple till conclusion of the trial of the case." 3. The main contention of the learned counsel for the petitioner before this Court is that the respondent No. 1 has actively participated in all the functions of Shri. Venkataramana Temple, Car Street, Mangaluru and Kashimutt, Mangaluru and in support of his arguments he has produced photographs to show that the first respondent had participated in the activities of the said Shri Venkataramana temple even though there is a direction while granting bail that he should keep himself away from all the activities and affairs of the said temple. The first respondent has taken active part in the Car Festival and connected programmes organized by Shri Venkataramana temple held during the month of February 2017. Inspite of the complaints made by the general public as well as the applicant, no action has been initiated against the first respondent. There are several meeting and temple activities and functions being held at the said temple. Inspite of the complaints made by the general public as well as the applicant, no action has been initiated against the first respondent. There are several meeting and temple activities and functions being held at the said temple. Inspite of there being a condition imposed by the Court, by violating the said condition, the first respondent is taking active part by his personal presence and causing commotion and embarrassment to the trustees and devotees of the temple and the persons belonging to Goud Saraswath community and there is every likelihood or chance of tampering of vital documents of the temple. 4. It is also further contended that there was Chathurmasa programme of Kashimutt for the year 2020 from the month of July to October 2020, in which one of the conspirators involved in the murder of Vasanth Baliga, Srimad Samyamendra Thirtha Swamiji has taken part in the said programme continuously for a period of four months at Shri Venkataramana temple, Kashimutt, Konchadi, Mangaluru and number of programmes, activities and processions took place in the said temple. The first respondent took active and leading role in all the programmes by associating with Srimad Samyamendra Thirtha Swamiji and he has openly sat in the tableau in which the said Srimad Samyamendra Thirtha Swamiji was carried. The accused No. 1 is posing threat to the applicant and her family members. It is necessary to cancel the bail since, the first respondent has violated the terms and conditions of the order. The petitioner complained to the police but respondent No. 1 used all his political power since he used the present MLA to shield him. 5. This petition is resisted by filing detail statement of objections by denying the allegations made in the petition and contended that similar application was filed before the Sessions Judge and also before this Court in Crl. P. No. 4415/2018 and the same was dismissed. It is contended that he was not involved in the management and affairs of the temple and neither the first respondent nor the family members have participated in the said Shri Venkataraman temple functions. However, it is submitted that they are devotees of the said temple and used to offer their prayer and seva in the temple. Offering of seva or their devotion cannot be construed as involvement in the management or the affairs of the temple. However, it is submitted that they are devotees of the said temple and used to offer their prayer and seva in the temple. Offering of seva or their devotion cannot be construed as involvement in the management or the affairs of the temple. The petitioner also indulged in seeking for further investigation in the matter by invoking Section 173(8) of and causing trouble to the first respondent. The trial is not yet commenced and even the first respondent is ready to face the trial as a false case has been registered against him. It is contended that at the cost of repetition, the first respondent and his family members are the devotes of the said temple and used to offer their prayer and seva in the temple. Offering of seva or their devotion cannot be construed as involvement in the management or the affairs of the temple and hence, prayed to dismiss the petition. 6. The learned counsel for the petitioner would vehemently contend that when the conditions particularly, condition Nos. (g) and (i) are violated and to evidence the said fact, the photographs are produced before the Court. It is clear that the first respondent has participated in the affairs of the temple and even he was on the stage and inaugurated the function and the first respondent has not denied the said photographs. When such being the case, it is a fit case to invoke Section 439(2) of Cr.P.C. The counsel in support of his arguments produced photographs in document Nos. 1 to 5. Apart from the photographs produced along with the petition and referring to those photographs, the counsel brought to the notice of this Court to the very involvement of the first respondent in the activities of the temple and apart from that he also relied upon the judgment of the Apex Court reported in (2005) 8 SCC 21 in the case of State of U.P. Through CBI vs. Amarmani Tripathi regarding cancellation of bail and relied on paragraphs 24, 31, 32 and 34, wherein the Apex Court discussed with regard to exercise of powers under Section 439(2) of Cr.P.C. and cancelled the bail granted by the High Court. The counsel in his additional facts also relied upon the photographs and relevant paragraphs extracted in detail. "24. The counsel in his additional facts also relied upon the photographs and relevant paragraphs extracted in detail. "24. The evidence collected above discloses that there were repeated attempts by the accused Amarmani to interfere and sidetrack the investigation and threaten the witnesses to come out with a story that would deflect the suspicion from him and his wife to Anuj Mishra or others. It is also not in dispute that Amarmani was on bail in a kidnapping case, when he indulged in these activities in May 2003. These materials were placed by the prosecution before the High Court to establish a reasonable apprehension of tampering. The learned Single Judge has, however, completely ignored these materials relating to tampering with evidence/witnesses. This necessitates interference with the order of the High Court. 31. In the present case, we find that the High Court has granted bail being of the opinion that the extra-judicial confession given by Rohit Chaturvedi, one of the co-accused may not stand the test of scrutiny by a judicial mind but that by itself was not sufficient to grant the bail. There is voluminous evidence collected by CBI to show the involvement of Amarmani Tripathi, and his effort to interfere with the investigation of the case before the grant of bail and also after the grant of bail. He tried to change the course of investigation by creating false evidence of the marriage of Madhumita with Anuj Mishra with the help of Yagya Narain Dixit, a police officer, the 6th accused who died in an accident during the course of investigation. There are written complaints with the investigating agency showing that after his release on bail Amarmani Tripathi tried to threaten as well as win over Nidhi Shukla, sister of the deceased and her mother by offering bribe. In our opinion, the High Court gravely erred in granting bail to Amarmani Tripathi in such circumstances. The High Court practically failed to consider/take into consideration the voluminous evidence which had been collected by the investigating agency and have been referred to by them in their statement of objections to the application for grant of bail. 32. It is true that the position of Madhumani is somewhat different from the case of her husband. While her husband is a politician and ex-Minister, she is no doubt a housewife. 32. It is true that the position of Madhumani is somewhat different from the case of her husband. While her husband is a politician and ex-Minister, she is no doubt a housewife. While her husband has several criminal cases against him, she has no such record. While there is material to show attempts by her husband to tamper with the evidence and threaten witnesses, there is nothing to show that she made any attempt to tamper with the evidence. But there is material to show that she had absconded for several months and surrendered only when bail was refused to her husband on the ground that she was absconding. Further, when the matter is considered in its entirety, with reference to the murder of Madhumita and the propensity of the husband and wife to pressurise and persuade others to act according to their wishes, there is reasonable ground for apprehension that if her husband alone is taken into custody; leaving her to remain outside, she may take over the task of tampering with the evidence and manipulating/threatening witnesses. Therefore, interference is called for even in regard to the bail granted to Madhumani. 34. For the reasons stated above, the orders dated 29-4-2004 and 8-7-2004 passed by the High Court are set aside. The bail bonds of the respondents in each of these cases are cancelled, the respondents are directed to surrender forthwith and in case they fail to do so, the State should take effective steps to take the respondents in custody." 7. Per contra, learned counsel for the first respondent has contended that this petition is filed by suppressing the facts that earlier, an attempt was made before this Court for cancellation of bail and also before the Trial Court and the same was rejected. This petitioner has participated as devotee and not involved in any affairs of the temple. The counsel would also submit that application is pending before the Special Court and the first respondent has not participated in the activities of the temple and he visited the temple only as a devotee and not collected any amount and in order to substantiate the allegation that any amount was collected, no material is placed before this Court and he has not violated any of the conditions imposed in the order passed by this Court and except the photographs, nothing is placed on record. The counsel in support of his argument has relied upon the judgment of the Apex Court in the case of Dolat Ram And Others vs. State Of Haryana reported in (1995) 1 SCC 349 wherein the Apex Court held that cancellation of bail already granted must be considered and dealt with on different basis not on the basis of the granting of bail. The counsel also relied upon the judgment reported in 2000 SCC 1508 in the case of Subhendu Mishra vs. Subrat Kumar Mishra and Another wherein also the Apex Court held that the High Court should not cancel the bail in a mechanical manner. The counsel also relied upon the judgment reported in (2004) 11 SCC 165 in the case of Samarendra Nath Bhattacharjee vs. State of w.b. And Another wherein also the Apex Court regarding cancellation of bail is concerned held that the High Court not to decide as if in appeal. The counsel also relied upon the judgment reported in (2018) 16 SCC 511 in the case of X vs. State Of Telangana And Another wherein regarding cancellation of bail has summarized the principles and held that bail once granted should not be cancelled unless a cogent case based on supervening events has been made out. 8. The counsel appearing for the State also in his argument would contend that there is no any violation as contended and secured the report and the said report discloses that there is no such violation and letters are also received from Shri Venkataramana temple stating that the first respondent has not participated in any such activities of the temple and he is also not the member of any committee and also separate letter is issued by the President of Kashimutt stating that the first respondent has not participated in any religious activities. 9. 9. In reply to the arguments of the counsel for the first respondent, the counsel for the petitioner would submit that the first respondent was present in the dais and inaugurated the function and also participated along with Swamiji in the religious function and the same is not done as a devotee and participated in the religious activities and the photographs were also not denied by the first respondent and the first respondent was assisting the speakers and he also participated in the sahabojana and all these photographs are evident and the reply given by the State is also far from the truth and they are only relying upon the letters issued by the temple and the mutt and not investigated independently hence, it is a fit case to exercise the powers under Section 439(2) of Cr.P.C. 10. Having heard the respective counsel for the parties and also the grounds urged in the petition, the points that arise for consideration are: (1) Whether it is a fit case to exercise powers under Section 439(2) of Cr.P.C.? (2) What order? POINT NO. 1: 11. Having heard the respective counsel and considering the material on record, it is clear that the first respondent has arraigned as accused No. 1 in a murder case facing the charges under Section 302 of IPC. The first respondent appeared before the Court for anticipatory bail and the same was rejected. It is also not disputed that this Court granted bail in favour of the first respondent in Crl.P. No. 6189/2016. Having read the operative portion particularly, the condition No. (g) wherein the specific condition imposed was that the petitioner shall appear before the concerned court on all the future dates of hearing except on the dates on which he is exempted from appearing for valid reasons. Though the learned counsel for the petitioner vehemently contend that there is a violation of this condition, no material is placed before the Court to show that whether he had appeared before the Trial Court or if any exemption application filed by him was allowed or rejected. Under such circumstances, the contention of the learned counsel for the petitioner that there is a violation of condition No. (g) cannot be accepted. 12. Under such circumstances, the contention of the learned counsel for the petitioner that there is a violation of condition No. (g) cannot be accepted. 12. Now, the other condition i.e., condition No. (i) remains for consideration of this Court wherein this Court while imposing condition passed the specific order that the petitioner shall keep himself away from all the activities and affairs of Shri Venkataramana temple, Car Street, Mangaluru and Kashimutt, Mangaluru and from the affairs and activities of all the committees attached to the said temple till conclusion of the trail of the case. Having read the said condition, it is very clear that the first respondent should keep himself away from all the activities and affairs of the temple and also the activities of the committees attached to the said temple till the conclusion of the trial of the case. The said order is modified that there is no prohibition on him from offering prayer as a devotee in the temple and mutt. It is further clarified that he is only conditioned from keeping away from the activities and affairs of the committees attached to the temple. Hence, it is clear that no prohibition from offering prayer as a devotee but conditioned to keep him away from the activities and affairs of the committees attached to the temple. When such specific condition is imposed, the photographs produced before the Court is clear that the first respondent had participated in the affairs of the temple and it is rightly pointed out by the learned counsel for the petitioner that the photographs have not been denied by the first respondent and apart from that in the statement of objections filed by the first respondent admitted the participation in the activities of the temple but contended that he has not involved in the management and affairs of the temple. In paragraph 7 it is contended that however, they are all devotees of the said temple and used to offer their prayer and seva in the temple. Offering of seva or devotion cannot be construed as involvement in the affairs of the temple. In paragraph 17 also it is contended that he has not involved in the management and administrative affairs of the temple or the mutt. Offering of seva or devotion cannot be construed as involvement in the affairs of the temple. In paragraph 17 also it is contended that he has not involved in the management and administrative affairs of the temple or the mutt. It is further contended that at the cost of repetition, the first respondent and his family members are the devotees of the said temple and used to offer their prayer and seva in the temple. Offering of seva or their devotion cannot be construed as involvement in the management or the affairs of the temple. The photographs is evident that he has not only offered pooja or seva in the temple but also participated in the function organized by the temple and he is in the dais and inaugurated the said function and the said photographs have not been denied by the first respondent. I have already pointed out that the order of this Court is very clear that he shall keep himself away from all the activities of the temple which does not mean that it is only for the affairs of the committees attached to the said temple but he should keep himself away from all the activities and affairs of the temple and hence, it is clear that he had participated in the activities and affairs of the temple and he was not only restrained from participating from the affairs of the activities of the committees attached to the said temple but it is specific that till the conclusion of the trial of the case, he should keep himself away from the activities of the temple and I have already pointed out that the same has not been denied and hence, it is clear that he had participated in the activities of the temple. This Court relaxed conditions for only to offer prayer as a devotee and his activities are only for offering prayer and not to participate in all the activities of the temple and to inaugurate the function. The participation in the dais and inaugurating the function in the temple doesn't mean that he is only offering the prayer as a devotee and it is clear that the same is participation of activities of the temple. The respondent No. 1 taking the advantage of the modification of condition, participated in all the activities of the temple. The participation in the dais and inaugurating the function in the temple doesn't mean that he is only offering the prayer as a devotee and it is clear that the same is participation of activities of the temple. The respondent No. 1 taking the advantage of the modification of condition, participated in all the activities of the temple. The State only relied upon the letters of the temple and not independently enquired and submitted fair report before the Court. 13. The counsel appearing for the first respondent brought to notice of this Court that trial has not yet commenced and not committed any violation of the order passed by this Court and this Court observed that the first respondent has participated in the activities of the temple even though there is a condition imposed by this Court to keep himself away from all the activities of the temple till disposal of the case. When such being the case and when the trial is not yet commenced, it is appropriate for the present that not to invoke Section 439(2) of Cr.P.C. for cancellation of bail and in view of the principles laid down in the judgments referred supra that exercising the powers under Section 439(2) of Cr.P.C. both are distinct and only in the exceptional cases, the Court can exercise the powers under Section 439(2) of Cr.P.C. and also an attempt was made earlier for cancellation of bail. However, the photographs now produced are evident that he has not only participated in the activities of the temple and even he was allowed to be there in the dais and inaugurate the function and helping the speakers as contended by the petitioner's counsel and hence, instead of cancelling the bail for the present, it is warned that the first respondent should not participate in the activities of the temple taking the advantage of relaxation, as directed, he only permitted to offer prayer as devotee as relaxed in Crl.P. No. 6917/2017 or otherwise this Court is going to invoke Section 439(2) of Cr.P.C. in future if the activities of the first respondent is against the order of the Court passed in Crl. P. Nos. 6189/2016 and 6917/2017. POINT NO. 2: 14. In view of the discussions made above, I pass the following: ORDER The petition filed under Section 439(2) of Cr.P.C. is dismissed for the present. P. Nos. 6189/2016 and 6917/2017. POINT NO. 2: 14. In view of the discussions made above, I pass the following: ORDER The petition filed under Section 439(2) of Cr.P.C. is dismissed for the present. If the first respondent fails to keep away from the activities and affairs of Shri Venkataraman temple, Car Street, Mangaluru and Kashimutt, Mangaluru, as prohibited in the earlier orders, this Court would invoke the jurisdiction under Section 439(2) of Cr.P.C. to cancel the bail in future.