Abhi @ Abhishek vs State Of Karnataka & Ors

G Basavaraja, J

Appellant who is accused No.5, has preferred this appeal against the order dated 15th July 2025, passed in Special Case No.9 of 2025 by the Additional Sessions-FTSC-II, Mandya under section 439 of Code of Criminal Procedure (for short "the trial Court").

Brief facts leading to this appeal, are that K.R. Pet, Rural Police, registered Crime No.235 of 2024 against the accused for the offence punishable under sections 376(3), 376(2)(n), 375DA, 450, 149 of Indian Penal Code and under sections 4, 5(G), 5(K), 5(L), 6 and 10 of Protection of Children from Sexual Offences Act (for short "the POCSO Act") and under sections 3(1)(w), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short "the SC/ST (PoA) Act").

First informant who is the mother of victim-girl, has filed typed first information alleging that on 29th October 2024, she had taken her minor daughter to the hospital for medical checkup. The doctor at the hospital, after medically examining the victim-girl, informed the first informant that the victim girl was pregnant. Upon Enquiry, the victim girl allegedly informed the first informant that five persons whose name are in the First Information Report had sexual intercourse with her, and as a result, she had conceived. Then the first informant approached the police and based on her complaint, FIR was registered. The police have arrested appellant/accused No.5 on 10th November 2024 and produced him before the Magistrate. He was reminded to judicial custody. After investigation, investigating officer submitted charge-sheet against the accused for the offence punishable under Sections 376(3), 376(2)(n), 375DA, 450, 149 of Indian Penal Code and under sections 4, 5(G), 5(K), 5(L), 6 and 10 of POCSO Act and under sections 3(1)(w), 3(2)(v) of the SC/ST (PoA) Act. The present appellant filed bail application under section 483 of BNSS, 2023, which came to be allowed on the ground of parity. Subsequently, it came to light that accused No.3, while seeking bail from the special court, suppressed the material fact that his earlier bail application had been rejected by his court. Upon discovering the concealment, the learned special court, without issuing any notice or affording any opportunity of hearing to the appellant, suo motu proceeded to cancel the bail which was granted not only to the accused No.3, but also to the appellant/accused No.5 and other accused by common orde dated 15th July 2025.

The learned Counsel for the appellant has reiterated the averments made in the memorandum of appeal and sought to allow the appeal. To substantiate his argument, he has relied upon the decision of Supreme Court in the case of BHURI BAI v. STATE OF MADHYA PRADESH reported in 2022 LIVELAW (SC) 956.

As against this, the learned counsel for respondent No.2 has filed his written objection and sought for dismissal of the appeal. He would reiterate the averments made in the written objection that the Session Court has got ample power to suo motu cancel the bail under sub-section(2) of section 439 of Code of Criminal Procedure. To substantite his argument, he would rely on the judgment of the Supreme Court in the case of R RATHINAM v. THE STATE BY DSP, DISTRICT CRIME BRANCH, MADURAI DISTRICT, MADURAI AND ANOTHER reported in (2000)2 SCC 391.

Smt. Asma Kauser, learned Additional State Public Prosecutor appearing for the respondent-State supports the arguments advanced on behalf of the complainant.

I have examined the materials placed before me. Before appreciating the materials and record, it is necessary to mention here as to the decision of Supreme Court in the Case of BHURI BAI (supra). In the said judgment at paragraphs 19 and 20, the Supreme Court has observed as under.:

"19. It remains trite that normally, very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted. Ordinarily, unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with under Section 439(2) CrPC.

It had not been the case of the prosecution that the appellant had misused the liberty or had comported herself in any manner in violation of the conditions imposed on her. We are impelled to observe that power of cancellation of bail should be exercised with extreme care and circumspection; and such cancellation cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail. In other words, the powers of cancellation of bail cannot be approached as if of disciplinary proceedings against the accused and in fact, in a case where bail has already been granted, its upsetting under Section 439(2) CrPC is envisaged only in such cases where the liberty of the accused is going to be counteracting the requirements of a proper trial of the criminal case. In the matter of the present nature, in our view, over-expansion of the issue was not required only for one reason that a particular factor was not stated by the Trial Court in its order granting bail."

In the case on hand, it is an admitted fact that the trial court has granted bail to the present appellant i.e. accused No.5 on 03rd June 2025. It is also an admitted fact that the victim or the State has not preferred any appeal against the order passed by the trial court. On 15th July 2025, The trial Court, suo motu, passed impugned order and in view of this order, the bail granted in favour of the present appellant/accused No.5 was cancelled and he was taken into custody and until now he is in custody. The trial court has observed in the order that, "accused No.3 by suppressing the dismissal of bail, has moved the bail application on the ground of parity and the application was allowed on 19th June, 2025. All the accused belong to the same village, therefore it is highly impossible to believe that they were unaware of the rejection of male application of accused No.3. Accused No.4 and 5 also suppressed the truth that the bail application of accused No.3 was rejected by the Hon'ble High Court of Karnataka and moved bail application and the ground of bail order of accused No.1. Hence, this court is of the opinion that accused 4 and 5 also suppressed the material facts and misled the court."

It is submitted by the Counsel for the appellant that accused No.5 was not aware as to the rejection of the bail application filed by accused No.3 as he was in judicial custody. When appellant/accused No.5 was in judicial custody, he could not know anything about the court proceedings. The learned Public Prosecutor has appeared on behalf of the State. When the Public Prosecutor has appeared before the court, it is his bounden duty to place all the judicial proceedings before the trial court. However, learned Public Prosecutor who has appeared on behalf of the State, has not brought to the notice as to the rejection of the bail application of accused No.3. Even if it is presumed that accused No.5 has got knowledge as to the rejection of the bail filed by the accused No.3, it is not his duty to place the same before the court. When the accused was in custody at the time of granting bail, at least the trial court would have provided an opportunity to the appellant to submit his explanation. But the trial court has not given any opportunity to the appellant before cancellation of bail. Therefore, considering the facts and circumstances and also applying the principles in the decision relied upon by the learned Counsel for the appellant/accused No.5, I am of the considered opinion that the impugned order, passed the trial court is illegal, opposed to natural justice and not sustainable under law. Accordingly, the same is liable to be set aside. In the result, I proceed to pass the following:

ORDER

i) Appeal is allowed;

ii) Order dated 15th July 2025 passed in Spl. C.No.9 of 2025 by the Additional District Judge-FTSC-II, Mandya is set aside;

iii) The trial Court is directed to release the appellant/accused No.5 forthwith;

iv) Appellant shall abide by the conditions which were imposed at the time of granting bail by the trial Court;

v) It is made clear that this court has not expressed any opinion on the merits of the case.