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2023 DIGILAW 108 (KAR)

Vinod Raj @ Vinod v. State of Karnataka

2023-01-19

R.DEVDAS

body2023
JUDGMENT R. Devdas, J. - This is a successive application filed in the form of an appeal to set aside the order passed by the Special Court in Special Case No.33/2020 dated 15.09.2022, wherein an application under Section 439 of Cr.P.C. filed at the hands of the appellant, who is accused No.2 praying to enlarge him on regular bail in Cr.No.214/2020 was earlier rejected. The crime was registered against the appellant and other accused for the offences punishable under Sections 302, 120B, 114 read with Section 34 of IPC and Section 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. Similar criminal petition was filed at the hands of the appellant in Criminal Appeal No.1696/2021 before this Court. This Court by order dated 14.03.2022 noticed that earlier the appellant approached this Court in Crl. Petition No.3361/2020 by filing a Criminal Petition under Section 439 of Cr.P.C., praying for enlargement on bail. This Court noticed the fact that although the complainant changed his version and maintained the allegations as against accused No.1 and 2, the charge of assaulting the deceased was retracted as against accused No.3 and 4. This Court had granted liberty to the appellant to approach the court after examination of C.W.1/complainant. 3. Learned Counsel for the appellant submits that C.W.1/complainant has been examined and cross-examined between 23.05.2022 to 29.07.2022. Learned Counsel has drawn the attention of this Court to a portion of the cross-examination of C.W.1, wherein, he has stated that his back was towards the occurrence of the incident since he was sitting on the motorcycle and as soon as, he was heard commotion he ran away from the place of incident. He has stated that he came to the spot after twenty minutes and he found that the deceased person was lying on the road. Learned Counsel submits that the witness has clearly stated that he has not able to identify the four persons, who are said to be the accused persons and who were present before this Court. Learned Counsel would further submit that in terms of the directions issued by this Court earlier, now that the examination of C.W.1/complainant has been completed and the evidence of all other witnesses except the official witnesses have been completed, this is a fit case for grant of bail. 4. Learned Counsel would further submit that in terms of the directions issued by this Court earlier, now that the examination of C.W.1/complainant has been completed and the evidence of all other witnesses except the official witnesses have been completed, this is a fit case for grant of bail. 4. Learned Counsel would place reliance on a decision of a co-ordinate Bench in the case of Hussainabba @ Hussain Vs. State of Karnataka, by Ullal Police Station, Mangalore City, in Crl.P.No.5896/2020 dated 09.04.2021 and also a decision of the Hon'ble Supreme Court in the case of Union of India Vs. K.A.Najeeb, reported in AIR 2021 SC 712 . 5. Per contra, learned High Court Government Pleader would submit that during the course of cross-examination of C.W.1/complainant, he has once again reiterated the fact that he saw accused No.2 i.e., the appellant herein stabbing the deceased person. Learned High Court Government Pleader would also submit that although the examination of C.W.1/complainant has been completed, nevertheless, in the list of witnesses, there are thirty persons named and more than eight to ten witnesses are yet to be examined. Therefore, learned High Court Government Pleader would submit that having regard to the fact that few more witnesses are yet to be examined, he would pray that the appeal may be rejected on the ground that if the bail is granted at this juncture, there is a possibility of the appellant threatening other witnesses or interfering with the process of justice. 6. Having heard the learned Counsel for the appellant, learned High Court Government Pleader and on perusing the appeal memorandum, this Court finds that there is sufficient force in the submission of the learned Counsel for the appellant. In the decision cited by the learned Counsel for the appellant in the case of Union of India Vs. K.A.Najeeb (supra) the Hon'ble Supreme Court has held that under trials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. It was therefore held that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail. 7. In other case that was cited by the learned Counsel for the appellant which also involves similar offence under Section 302 of IPC, as in the present case. Similar contentions were raised at the hands of the learned High Court Government Pleader that although the examination of P.Ws.1, 2, 4 and 5 was completed, there were about 20 witnesses to be examined and therefore, the objections were raised to the bail application. The co-ordinate Bench has also held that the apprehension of tampering with the witnesses has paled into significance in the light of the completion of evidence of the primary witnesses of the prosecution. It was also noticed that the petitioner has been in custody since February, 2017. Noticing all these facts the co-ordinate Bench granted bail to the appellant therein. 8. Having regard to all these facts which are relevant for consideration of a bail petition, this Court is of the considered opinion that the bail petition filed by the appellant under Section 439 of Cr.P.C., is required to be allowed and the appellant is required to be enlarged on bail. Hence, this Court proceeds to pass the following; ORDER The Criminal Appeal is allowed. Hence, this Court proceeds to pass the following; ORDER The Criminal Appeal is allowed. The impugned order dated 15.09.2022 passed by the I Additional District and Sessions Judge, Hassan in Special Case No.33/2020 is hereby quashed and set aside, while allowing the bail petition filed by the appellant under Section 439 of Cr.P.C. The appellant/accuse No.2 is enlarged on bail in Crime No.214/2020 of Channarayapatna Police Station, which is pending on the file of I Additional District and Sessions Judge, Hassan in Special Case No.33/2020 for the offences punishable under Sections 302, 120B and 114 read with Section 34 of IPC and Section 3(2)(v-a) of the SC/ST (POA) Act, subject to the following conditions; (i) The appellant/accused No.2 shall execute a personal bond of Rs.1,00,000/- (Rupees one Lakh only) with one surety for the likesum to the satisfaction of the concerned Court. (ii) The appellant shall fully co-oparate for the expeditious disposal of the trial. (iii) The appellant shall not tamper with evidence, influence in any way any witnesses. (iv) In the event of change of address, the appellant to inform the same to the concerned SHO. (v) Any violation of the aforementioned conditions by the appellant, shall result in cancellation of bail. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case.