Harish Reddy and Others vs State of Karnataka

L. Narayana Swamy, J—This petition has been filed under Sec. 439 of Cr.P.C. Case was registered in Cr. No. 145/2013 under Secs. 120B, 143, 147, 148, 307, 341 AND 302 R/W 149 OF IPC. Petitioners are Accused 1 & 2.

The peculiarity of this case is that earlier these very petitioners had approached this court in Cr.P. No. 3062/2014 and bail was granted on 11.11.2014. Thereafter, State has filed Cr.P. No. 2575/2015 disposed of on 10.7.2015 in which it is complained that petitioners who have filed bail petition have obtained benefit of bail by suppressing the fact of the order passed in Cr.P. No. 1287/2014 dated 14.3.2014 by which bail was rejected. Thereafter suppressing the said petition they filed another petition in which bail was granted, the same was cancelled in view of the suppression of facts by the petitioners. Learned counsel for the petitioners submits that after the bail was cancelled and liberty was reserved by this court to approach the Sessions Court. Rightly they have approached the learned Sessions Judge in S.C. No.97/2015 who has dismissed the petition. Hence this petition.

To impress upon the court, learned counsel appearing for the petitioners submitted that from the date of grant of bail and till it is re-called in July, 2015 for about 8 months, they have enjoyed freedom of bail and thereafter they surrendered by virtue of cancellation of bail. On merit, learned counsel for the petitioners submitted that eye witnesses CWs-2 to 4 of which CW-2 is the person who has suffered injuries which attributes Sec.307 of IPC. CW-3 & 4 are the eye witnesses to the incident. When there is a prima facie case, rightly the same has been considered and bail was rejected by this court. Initially a case was registered for accidental death on 7.5.2013. Thereafter, statements made by eye witnesses and the complaint filed by Rajashekar Reddy, on 8.5.2013 based on which the case was registered against the petitioners for the offences punishable under Secs. 120B, 143, 147, 148, 307, 341 and 302 R/W 149 OF IPC. In the petition where bail was granted, it was granted for the reason that eye witness Narayanaswamy was recorded after six days after the registration of FIR. According to the prosecution, these two persons viz., CW-3 & 4 witnessed the incident in question and reported the same to the complainant. These two witnesses statements were recorded 7 days after the registration of FIR. This was the basis for grant of bail. There are two orders, one granting bail and another rejecting the bail and further one it was cancelled. In the light of these materials, submission of the petitioners that as per the statement made by the police by issuance of endorsement, there is no complaint against tampering the witnesses or not complying the conditions for granting bail. There was a direction to appear before the Investigating Officer on every week and that has been complied and no case has been alleged against tampering the witnesses. Under the circumstances, counsel appearing for the petitioners made prayer to grant bail.

Learned Govt. Pleader appearing for the State relied on Crl.A. No. 2335/2014 between JAGMOHAN BAHL AND ANOTHER Vs. STATE (NCT of Delhi) AND ANOTHER and submitted that unless changed circumstances are placed before this court, petition has to be placed before the same Judge who has granted or rejected the bail. In the instant case, since bail was granted and thereafter rejected by this court before whom this petition also to be placed.

Learned counsel who has been permitted to assist the prosecution by allowing his memo submits that CW-2 who is injured and CW-3 & 4 who are the eye witnesses are rightly considered by this court while rejecting the bail and if the same reasons are taken into consideration this petition has to be rejected. Parity cannot be extended to these petitioners because the overt-acts against the other accused are entirely different from these petitioners. Hence he requests this court to reject the petition.

Based on the submissions made by the counsel appearing for the petitioners and submissions made by the Govt. Pleader, the point to be considered is:

"Whether this petition has to be posted before the same learned Judge who rejected the bail petition?

I have gone through the case of Jagmohan Bahl & another vs. State (NCT of Delhi) and another, wherein it has been held that petition may be placed before the same Judge in case of no changed circumstances. In fact I have followed the said the said decision in my another order wherein it has been held that unless changed circumstances are placed normally case has to be posted before the same Judge. But in the instant case, after the bail was rejected in Crl.P. No. 2575/2015 liberty was reserved to the petitioners to approach the Sessions Court. Petitioners have approached the Sessions Court, their application has been rejected. Thereafter this petition is filed. Changed circumstances itself is cancellation of bail by this court in Crl.P. No. 2575/2015 filed by the State and rejection of bail by the learned Sessions Judge in SC 97/2015 on 6.8.2015. Therefore, the judgment referred by the learned counsel in Jagmohan Bhal''s case is not applicable. Accordingly, it is not considered.

Thereafter for the purpose of consideration of bail, I have heard the counsel appearing for the petitioners and the Govt. Advocate and also the learned counsel who has been permitted to assist the complainant. I have gone through the materials.

Bail was granted by this court in November, 2014 and the same was recalled by this court in the month of July, 2015, for about 8 months petitioners were enlarged on bail and they have the benefit of liberty. Rejection of bail by this court for suppression of earlier rejection holds good. Be that as it may, when a person is granted bail though he is a beneficiary of suppression, by considering the reference made by the learned Judge who has granted bail viz., statements of CW-3 to 4 which were recorded after 7 days. At this juncture, learned counsel appearing for the respondent submitted that the very submission of the petitioners'' counsel that statements of CW-3 & 4 were recorded after 7 days was believed and trusted by this court and hence bail was granted. CW-2, the injured, his statement was recorded on 14.5.2013 after 7 days of the incident, CW-3 & 4 who are stated to be the eye witnesses, their statements were recorded on 8.5.2013. Said submission has been accepted for the purpose of granting bail in para-6 of the order in Crl.P. No. 3062/2014 disposed of on 11.11.2014 wherein Hon''ble Judge of this court has stated that statement was recorded after 7 days of registration of FIR may not be correct. That confusion probably the date on which CW-2''s statement recorded must have taken for CW-3 & 4 also. Here in the instant case, very calculative or arithmetical approach cannot be pressed into service. What is required to be looked into for the purpose of Sec.439 Cr.P.C. as per the judgment of the Supreme Court several factors are to be considered for the purpose of granting or rejecting the bail. It is reported in Pawanbala Vs. State of Himachal Pradesh , it is held:

"7. Another submission of learned Advocate appearing on behalf of the petitioner that petitioner is a female and she has special right to be released on bail on conditions imposed by Court is accepted for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interest of the public or the State. See Gurcharan Singh and Others Vs. State (Delhi Administration), AIR 1978 SC 179 : (1978) CriLJ 129 : (1978) 1 SCC 118 : (1978) SCC(Cri) 41 : (1978) 2 SCR 358 titled Gurcharan Singh and others Vs. State (Delhi Administration). Also see The State Vs. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 titled The State Vs. Captain Jagjit Singh. It was held in case reported in Sanjay Chandra Vs. CBI, AIR 2012 SC 830 : (2012) CriLJ 702 : (2011) 4 RCR(Criminal) 898 : (2011) 13 SCALE 107 : (2012) 1 SCC 40 : (2011) 6 UJ 4077 , titled Sanjay Chandra Vs. Central Bureau of Investigation that object of bail is to secure the appearance of the accused person at his trial. It was held that grant of bail is the rule and committal to jail is exception. It was held that refusal of bail is a restriction on personal liability of individual guaranteed under Art.21 of the Constitution. It was further held that accused should not be kept in jail for an indefinite period. Court is of the opinion that there is special provision to a female even in heinous criminal offence punishable with death or imprisonment for life. In view of the fact that petitioner has two minor children and parents to support, Court is of the opinion that it is expedient in the ends of justice to release the petitioner on anticipatory bail as per special provision of bail relating to women. It is held that if petitioner is released on bail then interest of State and general public will not be adversely affected."

In the judgment referred to above, it has been held that refusal of bail is an exception and grant of bail is a rule referring to Art.21 of the Constitution. It was further held that accused should not be kept in jail for an indefinite period. However the said observation has to be considered in the light of the factors referred to above.

Suppression of material fact is a ground to dismiss the petition or any petition filed to that extent. The proceedings are based on purely and strictly according to rules. When the Bar makes a submission normally in most of the circumstances this court will accept since submission is made by the learned members of the Bar. When the very learned Member submits at the bar that there are suppression of material facts intentionally and willfully, then that is a good ground to dismiss the petition. Suppression or false submissions made by the members of the Bar should not be fatal to the case of the litigants who in most of the circumstances are not aware what submissions are made by their advocate. A litigant permits and authorizes to make submission only in respect of a case and only truth because he has sworn to the affidavit to that extent. But over and above, submission made by the members of the Bar to that extent they are held to be responsible. I find learned counsel appearing for the petitioners has made a false submission, but that cannot be taken for the purpose of dismissing this petition.

Accordingly, the petition is allowed. Petitioners are granted bail in Cr. No. 145/2013 of Srinivasapura Police Station, Kolar who shall execute a bond for a sum of Rs. 75,000/- with one solvent surety each for the like sum to the satisfaction of the jurisdictional court;

They shall not hold out threat to prosecution witnesses or tamper with evidence;

They shall attend the court on all dates of hearing, except under unavoidable circumstances.

If they fail to appear before the trial court even for a single hearing deliberately, this bail order will stand cancelled automatically.