Bhimaraya S/o Ningappa Kawaldar vs The State through Hunasagi Police Station

This petition is filed by the petitioner/accused No.2 under Section 439 of Cr.P.C., seeking regular bail in Crime No.54/2016 of Hunasagi Police Station, registered for the offences punishable under Sections 302, 309 and 116 of IPC.

Brief facts leading to filing of the complaint are that, accused Nos.1 and 2 were having illicit relationship with each other; in-spit of the advise made by the elderly persons of the family, they continued the said illicit relationship. It is alleged in the complaint that when accused No.1 approached accused No.2, he scolded her and told her not to come to him and if she again comes he is going to kill and also asked her to go and die anywhere else. When that being the case, on 30.06.2016 at about 8.30 a.m., accused No.1 took her three daughters near to left side of the canal of K.B.J.S.L. Narayanapur and by throwing her children into the canal she also tried to commit suicide and at that time the by passer who has seen the incident has rescued her and on the basis of the complaint, a case has been registered against the accused person and the accused persons are in custody.

I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for respondent-State.

The main grounds urged by the learned counsel for the petitioner are that the petitioner is innocent, he has not committed any offence alleged against him and only because of ill-wishes with the petitioner he has been falsely implicated in this case. It is also contended that petitioner is the permanent resident of Kembhavi village, he has got a family to be nourished by him and he has got both movable and immovable properties, therefore, there is no chance of he being absconded. It is further contended that the complaint discloses the fact that accused has been involved only in the offence punishable under Section 116 of IPC and nothing more than that. Even otherwise if it is proved under Section 116 of IPC, the accused is punishable with only 1/4 of the maximum punishment for which he has been convicted. It is further contended that already investigation has been completed and charge-sheet has been filed and if the petitioner is released on bail, he is ready to abide by the conditions to be imposed by this Court and he is ready to offer sureties. On these grounds, he prays for allowing the petition.

On the contrary, learned High Court Government Pleader appearing for the respondent-State vehemently contended that accused No.2 is the main accused and because of him the alleged crime has taken place at the hands of accused No.1. He has also contended that even though accused No.2 is not directly involved, but he is also liable to be punished in accordance with law as contemplated under Section 116 of IPC. He further contended that at this juncture, if the petitioner is released on bail, there is likelihood of he being tampering with the prosecution witnesses, he may abscond and he may not be available for trial. On these grounds, he prays for dismissal of the petition.

I have gone through the copy of the FIR, complaint and the other charge-sheet material, which is made available in this case.

By going through the said material, it discloses that the petitioner/accused No.2 has got illicit relationship with accused No.1 and in-spite of the advise made by the elderly persons of the family, the said relationship was continued and prior to 30.06.2016 accused No.1 has again approached accused No.2 and accused No.2 has refused her and advised not to come to him and he has instigated and abated the deceased to go and die. Even though he has asked accused No.1 to go and die, the alleged offence is not in question in this case and no charge-sheet has been filed in this behalf. The allegation made against the petitioner is only under Section 116 of IPC. The said offence is not punishable with death or imprisonment for life and no direct overt-act is also forthcoming in any prosecution papers. When that being the case and already the investigation has been completed, chare-sheet has been filed, the petitioner is said to be the permanent resident of Kembhavi village, he has got both movable and immovable properties and he is ready to abide by the conditions to be imposed by this Court, then, under such circumstances, I feel, by imposing some stringent conditions if the petitioner is released on bail, it is going to meet the ends of justice and also the objections raised by the learned High Court Government Pleader.

For the above reasons, the petition is allowed and petitioner/accused No.2 is ordered to be released on bail, subject to the following conditions:

i. The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two solvent sureties for the likesum to the satisfaction of the jurisdictional Court;

ii. The petitioner shall not tamper the prosecution witnesses directly or indirectly;

iii. Petitioner shall appear before the concerned Court regularly for facing the trial.