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2022 DIGILAW 329 (KAR)

Kavitha S. v. State of Karnataka

2022-03-07

V.SRISHANANDA

body2022
JUDGMENT V. Srishananda, J. - Heard Sri. Harshavardhan, learned counsel for the petitioner; Sri. Vishnumurthy, learned counsel for respondent Nos. 2 and 3; and Sri. Vishwamurthy, learned High Court Government Pleader for respondent No. 1- State and perused the records. 2. The present petition is filed under Section 439(2) Cr.P.C. with the following prayers: "A) Call for the entire records in Crl. Misc. No. 8180/2021 on the file of XLV Additional City Civil and Sessions Judge Bengaluru City (CCH 46) and cancel the bail granted to the respondent No. 2 and 3 dt: 01.10.2021 u/s. 438 of the code of criminal procedure for the offences punishable under sections 498(A), 312, 323, 352, 354D, 355, 357, 504, 506, 454, 457 read with section 34 of Indian penal code and sections 3 and 4 of Dowry prohibition Act in Crime No. 0148/2021, dt. 06.09.2021 registered by the respondent No. 1 police i.e. Basavanagudi Women Police Station, Bangalore. B) Grant such other relief or reliefs as this Hon'ble Court deems fit in the facts and circumstance of the case in the interest of justice and equity." 3. The brief facts of the case are as follows: A complaint came to be lodged by the petitioner herein which was registered by the Basavanagudi Police in Crime No. 148/2021 for the following offences: Sections 498A, 312, 323, 352, 354D, 355, 357, 504, 506, 454 and 457 r/w Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act. 4. Respondent Nos. 2 and 3 who are the father-in-law and mother-in-law of the petitioner applied for grant of anticipatory bail before the District Court. The same, on contest, came to be allowed with conditions by order dated 01.10.2021 by the XLV Additional City Civil and Sessions Judge (CCH-46). 5. In pursuance of one of the conditions, respondent Nos. 2 and 3 appeared before the jurisdictional Magistrate and obtained regular bail by order dated 29.10.2021. 6. In other words, all the conditions imposed in Crl.Misc. No. 8180/2021 were complied by respondent Nos. 2 and 3. 7. 5. In pursuance of one of the conditions, respondent Nos. 2 and 3 appeared before the jurisdictional Magistrate and obtained regular bail by order dated 29.10.2021. 6. In other words, all the conditions imposed in Crl.Misc. No. 8180/2021 were complied by respondent Nos. 2 and 3. 7. The following grounds have been urged on behalf of the petitioner seeking cancellation of the bail; The impugned order passed by the Sessions court granting the Anticipatory bail to the respondent No. 2 and 3 u/s. 438 of the code of criminal procedure is not maintainable either under law or facts and same is liable to be set aside by this Hon'ble court. The Hon'ble Sessions court has failed to note the gravity and seriousness of the offences committed by the Accused No. 2 and 3, the continuous and immense mental and physical harassment given by the Accused No. 2 and 3 to the Complainant. The Hon'ble Sessions court has failed to note that in the instant case, not only the Accused No. 1 has given unbearable physical and mental torture to the complainant from the date of marriage and during her pregnancy and cause Miscarriage to her, the Accused No. 2 and 3 are also have given unbearable physical and mental torture to the complainant even during her pregnancy and caused Miscarriage to her. The Hon'ble Sessions court in a mechanical manner granted the bail to the respondent No. 2 and 3. The Hon'ble Sessions court has not at all considered the gravity and severity of the allegations which is the hallmark for exercise of discretionary power u/s. 438 of Cr.P.C. In the case on hand the complaint, FIR and the documents produced before the sessions court by the Complainant goes to show the culpability of the Accused and the gravity of the offences committed by them. But the Hon'ble Sessions court has miserably failed to consider the material evidence on record while granting the bail to Accused No. 2 and 3. The Hon'ble Sessions court has passed the impugned order in a routine manner without taking into consideration of conditions laid down in section 438 of code of Criminal procedure as to the nature and gravity/seriousness of the accusation and the possibility of applicant to flee from the justice. The Hon'ble Sessions court has passed the impugned order in a routine manner without taking into consideration of conditions laid down in section 438 of code of Criminal procedure as to the nature and gravity/seriousness of the accusation and the possibility of applicant to flee from the justice. The Hon'ble Sessions court has passed the impugned order in a routine manner without taking into consideration that the accused persons have constantly made several attempts to threat the complainant and her family members to take back the complaint given against them and threatening the witnesses as well and when all of their attempts to make the complainant to take back the complaint failed, then only they have approached the Hon'ble sessions court seeking anticipatory bail suppressing true facts of the case and making false submissions before the court. The Hon'ble Sessions court has passed the impugned order in a routine manner without taking into consideration of nature and seriousness of the proposed charges, material on record which is against to the various pronouncements made by the Hon'ble Apex Court as such the Hon'ble Sessions court has failed to follow the ratio in the matter of Gurbaksh Singh Sibbia Etc. vs. State of Punjab on 9 April, 1980 and in other various decisions given by the Hon'ble apex court that: "The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail." The reasoning given by the Hon'ble Sessions court at Para 12 of the impugned order goes to show that the Hon'ble Sessions court has granted the bail in a mechanical manner without any discussion of merit or demerit of the materials on record as such the impugned order is not at all a judicious one which is against to the fundamental principles of granting of bail. The Hon'ble sessions court passed an order granting the bail in a mechanical manner and passed the order without confirming that the Accused persons are residents of Bangalore, even without asking for any residential or any Identity proofs of the accused persons and without looking in to the address proof of the Accused persons. To be noted that the accused person have not produced any kind of residential proof or identity proof before the Hon'ble sessions court and before passing such order as per the conditions laid down by the Hon'ble sessions court (Condition No. 9) in its order. The accused No. 2 and 3 (Respondent No. 2 and 3) have not made out sufficient grounds for granting anticipatory bail and the Hon'ble Session Judge passed the Impugned order without any sufficient grounds or reasons to pass such order. The De-facto complainant has recently came to know that the accused No. 1 and his parents have cheated her and her parents by making them to believe the Accused No. 1 as an BE qualified Engineer even though his actual qualification is just 10th Std plus diploma. Till today they have not revealed the truth before the complainant or her parents and concealed the truth from the complainant and her family members. They have obtained the consent of the de facto complainant and her family members by miss-representation, cheating and criminal breach of trust and impersonation and thereby committed offences under section 406, 417, 419, 420 and 120B r/w section 34 of IPC. The complainant has given a complaint before the Kumaraswamy layout police station regarding this matter on 08/10/2021. But so far the said police have not taken any action against the accused persons. The accused persons are highly influential politically and financially and relatives of a local political leader and an Ex Minister, hence police are reluctant to take any action against the accused persons. So far the complainant has given 3 complainants to the said Kumarswamy layout police station and a complaint given to DCP was also forwarded to the ACP Subramanyapura (Kumaraswamy Layout). So far the complainant has given 3 complainants to the said Kumarswamy layout police station and a complaint given to DCP was also forwarded to the ACP Subramanyapura (Kumaraswamy Layout). The accused persons are residing just opposite of the said police station mean just 200-300 meters from the police station, But still no action has been taken against the accused persons and the complainant was made to run from the station to station and one authority to another seeking justice for the physical and mental harassment given to her. But despite lodging several complaints, despite approaching several higher authorities, the accused persons have succeeded to avoid any action against them. Thereby it's crystal clear that the accused persons are Obstructing or attempting to obstruct the due course of justice. The learned public prosecutor failed to bring it to the notice of the court regarding the major facts of the case and role played by the Accused No. 2 and 3 in the crime, the gravity of the offences committed by them and the several attempts made by the accused persons to threat the Complainant and her family members and also failed to bring it to the notice of the court regarding the contents of the documents produced before the court by the De-facto Complainant, may be due to lack of time or due to work load or due to negligence or for the reason best known to the public prosecutor. Hence the counsel of the de-facto complainant faced lot of inconvenience and couldn't bring any of the major facts of the case to the court notice and had to be a mute spectator even though he knew the true facts of the case. The accused persons are politically and financially highly influential persons and relatives of a local political leader and an Ex Minister and it is crystal clear that using such influence they are making sure that no action will be taken against them from the day one of the complaint given against them. The accused persons are politically and financially highly influential persons and relatives of a local political leader and an Ex Minister and it is crystal clear that using such influence they are making sure that no action will be taken against them from the day one of the complaint given against them. If the bail is granted in this kind of heinous crime against the women (vulnerable section of the society) cases the court will send a wrong message to the society and it will hinder the chances of getting justice as the accused persons in the present case subjected to the victim/De-facto complainant to continuous immense physical and mental torture for the period of 10 years and have made several attempts to threat the complainant and her family members to take back the complaint against them. Even otherwise the impugned order under challenge is illegal, improper and unjust which is liable to be set aside by this Hon'ble court, consequently this Hon'ble court has to cancel the bail granted to the respondent No. 2/Accused No. 2 and respondent No. 3/Accused No. 3. The complainant is in a critical financial position and leading the life in a great financial difficulty and in fear and anxiety that the accused persons may cause harm to her family members for filing complaint against them. Hence she was not in a position to file an application before this Hon'ble court seeking cancellation of bail granted to accused No. 2 and 3 and humbly prays this Hon'ble court to kindly condone the little delay in filing this application in the interest of justice and Equity. 8. Reiterating the above grounds, counsel for the petitioner vehemently contended that learned District Judge did not properly appreciate the gravity of the offence while granting the anticipatory bail and sought for cancellation of the same. 9. Per contra, learned counsel representing respondent Nos. 2 and 3 Sri. Vishnumurthy, not only filed the written objections but also filed the affidavit today, verifying the facts mentioned in the objection statement today. 10. Sri. Vishnumurthy, learned counsel further contended that all the conditions imposed by the learned District Judge has been duly complied by respondent Nos. 2 and 3 and the petitioners have also been granted regular bail by the jurisdictional Magistrate on 29.10.2021. 11. 10. Sri. Vishnumurthy, learned counsel further contended that all the conditions imposed by the learned District Judge has been duly complied by respondent Nos. 2 and 3 and the petitioners have also been granted regular bail by the jurisdictional Magistrate on 29.10.2021. 11. Learned High Court Government Pleader who represent the State, submits that there is no violation of the bail conditions. He also submits that there is no material on record on behalf of the Investigation Agency, which would support the grounds urged in the petition. In other words, learned High Court Government Pleader submits that no grounds are made out for cancellation of the bail. 12. In view of the rival contentions, this Court heard the parties. 13. Sri. Harshavardhan, learned counsel for the petitioner relied on two judgments of the Hon'ble Apex Court reported in 2014 AIR SCW 6830 and AIR 2017 SC 613. 14. Insofar as the judgment reported in 2014 AIR SCW 6830 is concerned the same would not had availed because in the said case the Hon'ble Apex Court refused to grant the anticipatory bail and it does not deal with Section 439 Cr.P.C. 15. Insofar as the second judgment reported in AIR 2017 SC 630 in the case of State of Bihar Vs. Rajballav Prasad is concerned, paragraph 12 reads as under: "P.12- We may observe at the outset that we are conscious of the limitations which bind us while entertaining a plea against grant of bail by the lower court, that too, which is a superior court like High Court. It is expected that once the discretion is exercised by the High Court on relevant considerations and bail is granted, this Court would normally not interfere with such a discretion, unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such a discretion are ignored or bypassed. In the judgments relied upon by the learned counsel for the respondent, which have already been noticed above, this Court mentioned the considerations which are to be kept in mind while examining as to whether order of bail granted by the court below was justified. There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. These material considerations are also spelled out in the aforesaid judgments, viz. There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. These material considerations are also spelled out in the aforesaid judgments, viz. whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. We have kept these very considerations in mind while examining the correctness of the impugned order. 16. Learned counsel for the petitioner also relied on the order passed by this Court in Crl.P. No. 4234/2021 dated 04.02.2022. In that case, the facts of the case are altogether different, inasmuch as there was a dowry death and therefore, the same are not applicable to the case on hand. 17. Based on the legal principles enunciated in the above case, learned counsel sought for cancellation of the bail. 18. This Court meticulously considered the principles of law enunciated by the Hon'ble Apex Court in Rajballav Prasad's Case (supra). 19. In the case on hand, the facts involved are totally different from the case found in Rajballav Prasad. The undisputed facts of the case are that the petitioner was married to Sri. K.C. Niranjana Murthy against the wish of respondent Nos. 2 and 3. It was a love marriage. Thereafter, serious differences arose between the parties. There is series of e-mails sent by the parties to each other. There is also an allegation that the petitioner herein has been physically tortured with bleeding injuries. Taking note of these aspects of the matter and after contest, the learned District Judge passed an order granting anticipatory bail dated 01.10.2021. Against which, the present petition came to be filed on 26.11.2021 by the complainant. 20. In pursuance of the order dated 01.10.2021, respondent Nos. 2 and 3 have also obtained regular bail before the jurisdictional Magistrate on 29.10.2021. 21. The Investigating Agency did not find any good materials seeking cancellation of the bail. There are ancillary complaints with regard to the main complaint filed by the petitioner. The same are before the police. According to the petitioner, respondent No. 2 is highly influential person. Therefore, police are not taking any action against the ancillary complaints. If that were to be so, the remedy for the petitioner lies elsewhere and that would not be a ground for cancellation of the bail. 22. The same are before the police. According to the petitioner, respondent No. 2 is highly influential person. Therefore, police are not taking any action against the ancillary complaints. If that were to be so, the remedy for the petitioner lies elsewhere and that would not be a ground for cancellation of the bail. 22. Suffice to say that the grounds urged above do not make out a ground for cancellation of bail by resorting to the special powers vested with this Court under section 439(2) Cr.P.C. 23. Learned High Court Government Pleader submits that the Investigation is progressed to a considerable extent and shortly charge sheet would also be filed against all the accused persons. 24. Placing his submission on record, this Court is of the considered opinion that no case is made out for cancellation of bail. Accordingly, pass the following; ORDER Petition is rejected.