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2022 DIGILAW 209 (KAR)

Annappa Shetty v. State

2022-02-15

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - These two petitions are filed under Section 439(2) of Cr.P.C, by the original complainant/petitioner herein praying to set aside the order dated 27.11.2021 passed in Crl. Misc. No. 695/2021 and Crl. Misc. No. 698/2021, respectively on the file of Additional District & Sessions Judge at Udupi, sitting at Kundapura for the offences punishable under Sections 504, 506, 324, 307, 114 read with Section 34 of IPC and cancel the orders of bail. 2. Heard the learned counsel appearing for the petitioner in both the petitions and the learned High Court Government Pleader appearing for respondent No. 1/State and the learned counsel appearing for respondent No. 2. 3. The factual matrix of the case of the prosecution is that the petitioner is running a family Bar and Restaurant in the name and style of 'Silver Arch'. One Ashweej Shetty is the Manager of the Restaurant. On 20.10.2021, the accused persons came to the Bar and Restaurant at around 9:00 p.m., and insisted the Manager for money. Further they assaulted with bottle, abused him in a filthy language and also threatened to take his life. In this regard, a complaint was filed. The complainant along with his friends gone to the police station for enquiry. When they were returning after enquiry near Nikhil Hotel, the Car of the complainant's friend stopped and they got down from the car. On looking to this, he also stopped the Car. At that time, his friends looking into the accused persons along with 3 others proceeded and making conversation. At that time, the accused and others suddenly started abusing them in a filthy language and threatened to kill them. The accused were armed with iron rod, long knife with an intention to kill the complainant and his friends started assaulting. When the accused Kiran Poojary used a long knife for assaulting, the friends of the complainant, tried to avoid the assault, but the knife hit the back of Ravi Shetty. The accused Ashok Devadiga assaulted with an iron rod over one Prashanth Shetty. The accused Kiran Poojary pulled Ravi Shetty to the ground and made an attempt to assault him with a long knife. At that time, the complainant intervened and avoided the assault. The two others, who were with the accused, also assaulted Akshay Acharya and Prashanth Shetty with an iron rod. The accused Kiran Poojary pulled Ravi Shetty to the ground and made an attempt to assault him with a long knife. At that time, the complainant intervened and avoided the assault. The two others, who were with the accused, also assaulted Akshay Acharya and Prashanth Shetty with an iron rod. On looking to the galata, the public came near the spot and on looking at them, the accused ran away from the spot. Hence, based on the complaint, a case has been registered. 4. The learned counsel appearing for the petitioner would submit that the Trial Court has granted bail in favour of respondent No. 2 in both the petitions without looking into the nature and seriousness of the offences invoked against them. The learned counsel would vehemently contend that they are the habitual offenders and they were having several cases against the respondents herein. In spite of it, the Trial Court exercised the discretion. It is also contended that the respondents are anti social elements. The learned counsel also would vehemently contend that the Trial Court failed to appreciate the objection of the prosecution that the bail application filed by the respondents came to be rejected and even not surrendered before the police or the Court and disrespected the order of rejection of the bail. The Trial Court committed an error in giving the reasons that if the bail is rejected, it is the duty of the Investigating Officer to nab the accused and produced before the Court and merely because the rejection of the bail petition cannot be a ground to reject the bail petition and the very approach of the Trial Court is erroneous. 5. 5. Per contra, the learned High Court Government Pleader appearing for respondent No. 1/State in both the petitions would vehemently contend that Crime No. 166/2021 was registered in respect of the previous date and the injuries were simple in nature and the Court taking into note of the scope of Section 439 of Cr.P.C., exercised its discretion and the petitioner has suppressed the facts before the Court and the respondent was in the hospital on account of the injuries sustained by the respondent in the counter case in Crime No. 166/2021 and assaulted with Talwar and regular bail was granted by the Trial Court after rejection of the petition filed under Section 438 of Cr.P.C. Hence, the same cannot be a ground to reject the bail petition. The respondent was in the hospital. Hence, he could not file the complaint immediately. 6. Having heard the respective counsel and on perusal of the material available on record, no doubt, the Trial Court exercised the discretion under Section 439 of Cr.P.C., granting bail in favour of respondent No. 2 herein in both the petitions and the facts also disclose that there is a case and counter case in Crime No. 166/2021. The main contention of the learned counsel for the petitioner is that there were several cases against the respondents and the same has been culled out in paragraph No. 13 of the orders of the Trial Court. The Trial Court while exercising the discretion taken note of the judgment of the Apex Court in the case of Prabhakar Tewari v. State of U.P. and another reported in 2020(11) SC 684, and also in Criminal Appeal No. 159/2012, and taken note of the injuries sustained and the injured persons are discharged from the hospital after the treatment and also considered the fact that the respondents are in the custody from 21.10.2021 and the bail was granted in the month of November. No doubt, there are several cases against the respondents. 7. The learned counsel appearing for the respondent No. 2 in both the petitions brought to the notice of this Court that at the instance of this petitioner two cases are registered. While exercising the discretion, the Court has to take note of the nature of injuries, nature of accusation and seriousness of allegations. The injuries are simple in nature and also the injured persons are out of danger. While exercising the discretion, the Court has to take note of the nature of injuries, nature of accusation and seriousness of allegations. The injuries are simple in nature and also the injured persons are out of danger. The Trial Court also taken note of the fact that the Court has to appreciate the factual aspects of the case in which the bail has to be granted. It is also observed that the rejection of bail in other crime case cannot be a ground for rejection of the bail petition. Mere pendency of other criminal case is not a ground to reject the bail petition and the Trial Court rightly exercised the discretion under Section 439 of Cr.P.C. in granting bail in favour of respondent No. 2 in both the petitions. 8. The very contention of the learned counsel for the petitioner is that this petitioner is a habitual offender and there are several cases against him cannot be a ground for cancellation of bail. The Court while cancelling the bail invoking Section 439(2) of Cr.P.C., not to pass the order mechanically and the Court should be very slow in exercising the powers under Section 439(2) of Cr.P.C., only if perverse and capricious order is passed without considering the material on record, then only the Court can exercise the powers under Section 439(2) of Cr.P.C., or otherwise not to exercise the powers under Section 439(2) of Cr.P.C. Hence, I do not find any merit to exercise the powers under Section 439(2) of Cr.P.C., in both the petitions. 9. In view of the discussions made above, I pass the following: ORDER The petitions are dismissed.