Govindaraju vs Prathima

Anand Byrareddy, J.—The present petition is filed in the wake of cancellation of bail, granted vide order dated 15.10.2013, by the court of II Additional District and Sessions Judge, Bangalore Rural District, by the impugned order dated 31.7.2014, passed by the IV Additional District and Sessions Judge, Bangalore Rural District, which is under challenge herein.

The brief facts of the case as alleged are that the present petitioner Govindaraju is known to the complainant, Prathima and her husband. It is said that there was an agreement, under which the petitioner and his wife were to construct a house for Prathima and her family. The cost of construction was said to be Rs. 18 lakh. Prathima and her husband are said to have paid a sum of Rs. 15.30 lakh and there was an outstanding amount of Rs. 2.70 lakh, which was to be paid in consideration of the said agreement. There was said to be a delay in payment in spite of repeated demands.

It was further alleged that on 23.8.2013, when the complainant and her two minor children, who were said to be mentally challenged, were alone at home, the petitioner is said to have come into the house and had locked the doors from inside and after ushering the children into a room and locking them in, had then turned on the complainant, while brandishing a knife, had taken her into another room and after stripping her naked, had committed rape on her while all the while putting her in mortal fear of her life. In respect of the said incident, there was a criminal case lodged against the petitioner for offences punishable under Sections 376 and 506 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC, for brevity). The petitioner is said to have approached the Court of the II Additional District Judge, holding concurrent charge of the Fast Track Court, Bangalore Rural District and is said to have obtained anticipatory bail on certain conditions.

It is stated that the petitioner is a head constable with the Police Department and is presently deployed as a gunman to a prominent political leader holding office. It was the allegation of the respondent-complainant that the petitioner had been regularly intimidating her and her family members to face serious consequences if the allegations against him were not diluted, and thereby ensuring his acquittal in the pending criminal prosecution. In this regard, a case has been registered in CC. No. 1602/2014, against the petitioner at the instance of the complainant, for offences punishable under Sections 448, 506, 114 read with Section 34 of the IPC. A charge sheet is said to have been submitted in that regard.

It is also stated that the petitioner had, in furtherance of his intimidatory tactics, come to the house of the complainant and while abusing her and her husband in foul language, had hurled stones at her house, resulting in the window panes of her house being shattered. In this regard, there is yet another case registered u/s 427 of the IPC, against the petitioner, in case no. CC 1624/2014.

It is in the above background that the complainant had approached the court below seeking cancellation of bail granted in favour of the petitioner. The court below having allowed the application, the present petition is filed.

The learned Senior Advocate, Shri M.S. Rajendra Prasad, appearing for the counsel for the petitioner contends as follows:

There is no indication of there having been any impediment to the investigation conducted into the allegations against the petitioner. If there had been any such obstruction, the investigating officer would certainly have brought it to the attention of the competent court. This primary circumstance is overlooked by the court below, which has been influenced by the further false allegations that are brought against the petitioner.

It is pointed out that the attempt on the part of the complainant to bolster the case against the petitioner by bringing yet another criminal case against the petitioner in CC 1624/2014, had resulted in a judgment of acquittal of the petitioner, dated 1.7.2014. Though this aspect was brought to the attention of the court below, the court had chosen to ignore the same and had held that case against the petitioner as if the same was pending on board.

It is further urged that the petitioner is said to have committed several alleged offences along with one Rita Kumari and Loganathan, as alleged by the complainant, and the court below had accepted the allegations as being established, prima facie, without any basis. It is contended that the following circumstances would demonstrate the falsity of the allegations:

a) Reeta Kumari and Loganathan have been interacting with the Pratima and Satish Kumar to help them in treating their mentally retarded children.

b) So also the fact that, Reeta Kumari and Logananthan had asked them to give a compliant to them against the petitioner herein regarding alleged complaint of rape and assured them to get justice.

c) On registration of Cr. No. 202/2013, the relationship between Pratima and Satish with that of Reeta Kumari and Loganathan and strained, which was quite evident from registration of Crime No. 197/2013 for offences punishable under Scheduled Castes and Scheduled Tribes (Prevention of "Atrocities) Act, 1989.

d) Surprisingly, in their strained relationship, the name of the petitioner has been included by the complainant, with sole intention to use the same for filing an application for cancellation of bail granted to him in complaint of rape.

e) Though the incident leading to registration of Crime No. 202/2013 was on 12.12.2013, surprisingly, no such information has been given by the complainant to the I.O. who was investigating Cr. No. 158/2013 for rape, wherein, now the impugned order has been passed. But belatedly, on 26.12.2013 i.e., after 20.12.2013 (the date of filing of Charge Sheet in Crime No. 158/2013), the husband of the complainant-Satish lodged a flimsy complaint against the petitioner in Crime No. 202/2013, which is now charge sheeted and is pending for trial in C.C. No. 1620/2014.

f) The incident is on 12.12.2013 whereas, the complaint came to be filed on 26.12.2013, which throws doubt about the very complaint of intimidation. This itself shows that, it is a false case.

The learned Senior Advocate would contend that minute findings touching upon the merits of the case affecting the defense of the accused could not be given by the court while granting or cancelling bail, as held in Samarendra Nath Bhattacharjee Vs. State of West Bengal and Another, .

It is contended that the mere registration of another case cannot be a ground to cancel the bail granted in an earlier case. ( Gurdip Singh and Another Vs. The State of Punjab and Another,

The allegation of criminal intimidation and seeking to influence witnesses, ought to be brought to light at the earliest, as laid down in a case reported in Raj Kumar Jain and Another Vs. Kundan Jain and Another, . In the instant case on hand, the incident as alleged, is of 12.12.2013, where as the complaint is lodged on 26.12.2013, which throws serious doubt on the truth of the same.

On the other hand, the learned State Public Prosecutor and the learned counsel appearing for Respondent no. 1, the complainant seek to justify the order impugned.

In the facts and circumstances of the case, it is to be kept in view that rejection of bail, when bail is applied for, is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. (See: State (Delhi Administration) Vs. Sanjay Gandhi, )

The issue of cancellation of bail is only an incidental matter, it is not required to be proved beyond reasonable doubt. (Sanjay Gandhi, supra)

The court has been given the power and discretion to cancel the bail, but the Section does not give any guidance as to when and how the discretion is to be exercised. A consistent view of the courts as to when a person granted bail may have the bail cancelled and be recommitted to jail are:

(i) here the person on bail during the period of the bail, commits the very same offence, for which he is being tried, or has been convicted and thereby proves his utter unfitness to be on bail;

(ii) If he hampers the investigation as will be the case if he, when on bail, forcibly prevents the search of places under his control for the corpus delicti or other incriminating things;

(iii) If he tampers with the evidence, as by intimidating the prosecution witnesses, interfering with the scene of the offence in order to remove traces or proof of the crime;

(iv) If he goes away out of the jurisdiction of the court, or goes underground, or beyond the control of his sureties;

(v) If he commits acts of violence, in revenge, against the police and prosecution witnesses and those who have booked him or are trying to book him;

The above are but a few illustrative instances and are by no means exhaustive.

Keeping the above in view, if the facts of the present case are examined, it is seen that the petitioner had been granted anticipatory bail in the first instance. The several supervening circumstances have been alleged and countered only much later in the court below forming an opinion that the petitioner was undeserving of the grant of bail. The forceful arguments put forward by Shri Rajendra Prasad to highlight that the court below has either ignored certain facts or has arrived at conclusions without any basis, with reference to material documents apart, it is to be kept in view that the court below has on a overall impression of the position held by the petitioner and the possible vulnerable position of the complainant and her family has in its wisdom exercised the discretion to cancel the bail granted in favour of the petitioner.

In an application for cancellation of bail, it is not necessary for the prosecution or the complainant to prove by a mathematical certainty or even beyond a reasonable doubt that the accused has conducted himself in a manner making himself undeserving of the bail granted in his favour. It is possible to establish a case for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tried to intimidate the witnesses for the prosecution. Or at least that there is a reasonable apprehension that the accused would interfere with the course of justice, which is all that may be necessary for the court to allow such an application.

Accordingly, the petition is dismissed.