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State of Karnataka, Represented by State Public Prosecutor v/s Jayadeva & Another

    Criminal Petition No. 9265 of 2017

    Decided On, 25 October 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Petitioner: H.S. Chandramouli, SPP. For the Respondents: P. Basavaraju, Advocate.



Judgment Text

(Prayer: This Criminal Petition is filed under Section 439(2) of Cr.P.C praying to cancel the bail order dated 10.07.2017 passed in Crime No.57/2017 by the Principal Senior Civil Judge and C.J.M., Ramanagara granting bail to the accused/respondents in Crime No.57/2017 of Ijoor Police for the offences punishable under Sections 427, 506, 504, 323, 324, 354 and 307 r/w 149 of IPC and cancel the said order of bail and direct that the accused/respondents be arrested and committed to custody.)

1. The present petition has been filed by the State praying this Court to cancel the bail order dated 10.7.2017 passed by the Principal Senior Civil Judge and CJM at Ramanagar in Crime No.57/2017 for the offences punishable under Sections 427, 506, 504, 323, 324, 354, 307 r/w. Section 149 of IPC.

2. I have heard Sri H.S.Chandramouli, learned SPP appearing for the petitioner-State and Sri Basavaraju P., learned counsel for the respondents-accused.

3. Brief facts of the case are that on 9.5.2017 at about 6.00 p.m., since it had rained, the drainage water in front of the house of the complainant was blocked, the water was flowing into backyard and into cattle shed of the complainant. Complainant informed accused No.5- Mahadevamma and accused No.2-Suresh to remo

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ve the stone slab covered to the said drainage for free flow of water. It is further alleged that the complainant went out to supply the milk, he returned at about 8.00 p.m. At that time accused Nos.1 and 2-respondents herein picked up a quarrel with the complainant and immediately started assaulting him with wooden stick on his chest, head and other parts of the body and as a result of the same, he sustained bleeding injuries. It is further alleged that other accused persons pushed him down and assaulted with hands and abused him in filthy language. It is further alleged that when the father of the complainant came to rescue him, accused persons also assaulted him and torn the clothes of the parents of the complainant. It is further alleged that in the said galata, the mother of complainant has lost a gold chain. On the basis of the complaint, a case was registered.

4. It is the contention of the learned SPP that the crime against the accused has been registered for the offence punishable under Section 307 of IPC and when accused Nos.1 and 2 preferred a bail application before the District Court, the District Court held that there was a prima facie case against them and the petition under Section 438 of Cr.P.C. was rejected. When the appellate Court or Superior Court has held that there is a prima facie case as against accused Nos.1 and 2, the learned Magistrate without there being any power, has wrongfully approached the case and granted the bail. He further submitted that the Magistrate has no power to release the respondents on bail when the offence is punishable under Section 307 of IPC. The said act of the learned Magistrate shows that the order of the Court below is without application of mind and exceeding jurisdiction. He further submitted that no reasons, much less valid reasons have been assigned while granting the bail. By relying upon a decision in the case of Prahlad Singh Bhati Vs. NCT Delhi & Anr., reported in 2001 SAR (Criminal) 412, he further submitted that the Magistrate has no power to grant bail to the accused in respect of the offences punishable for the death or imprisonment for life. He further submitted that while dealing with the application for grant of bail, the power of the Magistrate is regulated by the punishment prescribed for the offence in which the bail is sought for. Section 437 of Cr.P.C. limits the jurisdiction of the Magistrate to grant the bail. By relying upon a decision in the case of Raj Kumar Sharma and others Vs. State (Delhi Administration), reported in AIR 1978 SC 179 he further submitted that it is essential that proper weight should be bestowed on the case and the Court has to keep in view two paramount considerations, namely, likelihood of the accused fleeing from justice and tampering with the prosecution evidence and ensuring the trial. The trial Court without consideration of the said aspect, has granted the bail. On these grounds, he prayed to allow the petition and to cancel the bail granted to the respondents-accused.

5. Per contra, learned counsel for the respondents- accused Nos.1 and 2 vehemently argued by submitting that as per Section 437 of Cr.P.C., the Magistrate has got a power to release the accused on bail. The only restriction imposed is that the Public Prosecutor or the Assistant Public Prosecutor should be given an opportunity and after being heard the case of the prosecution, the Magistrate can grant the bail to the accused. He further submitted that the FIR which has been produced is not for the offence punishable under Section 307 of IPC. In that light, the Magistrate has power to grant the bail. He further submitted that though the District Court has rejected the application under Section 438 of Cr.P.C. when an application has been filed afresh under Section 439 of Cr.P.C. the Court below on facts and circumstances of the case, can entertain such application and pass an order. He further submitted that there are civil disputes pending between the parties and as such a false case has been registered. He further submitted that the complainant has not sustained any injuries. Even the medical records also indicate that only conservative treatment has been given to the complainant. By relying upon a decision in the case of Ashireddygari Narasimhareddy and another Vs. State of A.P., reported in 2001 Crl.L.J 2010, he further submitted that whether the Magistrate can grant bail under Section 437(1) of Cr.P.C. in a case punishable under Section 307 of IPC is no more res integra and as such the Court can grant the bail. He further submitted that the petitioner-State has not made out any good ground to allow the petition and to set aside the impugned order. On these grounds, he prayed to dismiss the petition.

6. I have carefully and cautiously gone through the submissions made by the learned SPP and the learned counsel for the respondents and perused the material which has been produced along with the petition.

7. As could be seen from the order of the trial Court, the said order depicts that after taking into consideration the facts and circumstances, even the provision of law, the trial Court has observed that the material supplied by the prosecution including the case diary is not sufficient to prima facie show the commission of the offence punishable under Section 307 of IPC. Even it has been observed that accused Nos.1 and 2 are located and permanent residents of Archakarahalli and they fleeing away from justice does not arise. In that light, the bail has been granted. Though the trial Court has not considered the order passed by the District Court, as could be seen from the records, the District Court while considering the bail application under Section 438 of Cr.P.C. has observed that on perusal of the complaint one thing can be gathered that the act alleged against petitioner Nos.2, 3, 5 and 6 therein is not heinous in nature and the grant of bail to petitioner Nos.1 and 4 therein will encourage them in committing similar type of offence. In that light, the anticipatory bail was rejected and in so far as petitioner Nos.2, 3, 5, 6, therein are concerned, they have been released on bail. On going through the said order, prima facie case has been looked into only for the purpose of considering the application filed under Section 438 of Cr.P.C. it will not act as a res judicata and that too when it was under Section 438 of Cr.P.C. Even subsequent charge sheet material made available indicates that the charge sheet has been filed against the accused under Section 307 of IPC, but when in the first instance, in the FIR which has been submitted on 9.5.2017 there is no mention about the offence punishable under Section 307 of IPC. Even the wound certificate also shows the opinion of the doctor that the injuries sustained by the injured are simple in nature.

8. I have carefully and cautiously gone through the decisions quoted by the learned SPP as well as the learned counsel for the respondents. I am not having any difference of opinion with regard to proposition of law laid down by the Hon'ble Apex Court. Even the Magistrate has got power under Section 437 of Cr.P.C. to entertain the bail application though the offence is punishable with death or imprisonment for life. This Court and even the Hon'ble Apex Court have already ruled that depending upon the facts and circumstances of the case, the Magistrate can entertain the application filed under Section 437 of Cr.P.C. and the said issue is no more res integra. In that light, the submission made by the learned SPP is not acceptable.

9. Be that as it may, under what circumstances the Court can exercise its power for cancellation of bail has been laid down by the Hon'ble Apex Court in the case of Abdul Basit @ Raju & others Vs. Mohd. Abdul Kadir Chaudhary & another, reported in (2014) 10 SCC 754, wherein at paragraphs-13 and 14 it has been observed as under:-

"13. It is trite that Section 167(2) creates a deeming fiction whereby the release of a person is equated to his release under Chapter XXXIII of the Code. However, an order for release on bail under proviso (a) to Section 167(2) is not an order on merits but an order-on-default of the prosecuting agency. Such an order could be nullified for special reasons after the defect/default has been cured. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge- sheet is filed, the bail granted under proviso(a) to Section 167(2) could be cancelled on an application by the prosecuting agency.

14. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e. the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed.(Raghubir Singh v. State of Bihar)."

10. On going through the aforesaid guidelines if at all the prosecution launches to cancel the bail there must be some reasonable grounds to believe that the accused has committed a non-bailable offence and the accused has committed breach of any one of the conditions stated therein. It is further stated that once the bail has been granted to the accused without justifiable grounds, the bail cannot be cancelled. No such allegations have been made in the petition that there is a breach of any of the conditions imposed by the Court below while releasing the accused on bail. The only ground urged is that the Court below has not considered the order passed by the Sessions Court rejecting the application under Section 438 of Cr.P.C. by holding that there is a prima facie material. But the order of the Court below indicates that the Court below applied its mind and after considering the material, it has granted the bail. Usually the granting and rejecting of the bail is the discretion of the Court. If there is no illegality or perversity in the order, then under such circumstances, the appellate Court must be very slow in interfering with such orders. In that light, the contentions raised by the learned SPP are not sustainable and as such the same are rejected.

In view of the above, the petition being devoid of merits is liable to be dismissed and accordingly the same stands dismissed.
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