H.D. Harsha vs The State of Karnataka

A.V. Chandrashekara, J.—Petitioner is the 3rd accused in a criminal case in Crime No. 244/12 on the file of Nelamangala police station. After concluding investigation, charge sheet has been filed against all the accused for the offense punishable under Sections 120B, 143, 147, 148, 341, 427, 323, 324, 332, 307, 302, 506, 114 read with Section 149, I.P.C. and Sections 25 and 27 of the Arms Act. Petitioner is in judicial custody since December 2012. This is the third bail application filed under Section 439, Cr.P.C. after dismissal of similar bail applications filed in Crl.P.6832/13 and Crl.P.1961/14 disposed of on 18.9.2013 and 15.7.2014 respectively.

The case on hand relates to the murder of one person by name BEML Krishnappa on 26.7.2012 near Arishinakunte of Nelamangala Taluk. Prosecution case is that BEML Krishnappa was travelling from Binnamangala to Hotel Samrat, Seshadripuram, Bengaluru, on 25.7.2012. In the said hotel, the complainant-Ramakrishnappa met the friends of deceased BEML Krishnappa. At about 7.00 p.m., BEML Krishnappa and the complainant and his friends proceeded towards Arishinakunte village in Nelamangala along with his gunman-Sachidananda. BEML Krishnappa and the complainant were travelling in an INNOVA car driven by his driver, and the others along with the gunmen were traveling in two other cars.

It is alleged that when the car reached service road near Arishinakunte at 7.30 p.m., 10-15 persons surrounded the car in which BEML Krishnappa was seated. One amongst them wielded a rod and attacked on the right side of the car and in the meanwhile, a Tempo Traveller came to the spot and a group of people alighted from it and started attacking the car of BEML Krishnappa. There was firing and cross firing. In the said firing, Bettanagere Seena died.

The present petition is filed on the ground that there are changed circumstances to file this third bail application on the ground that similarly placed accused have been released on bail and that as per the direction given by the Hon''ble Apex court, trial has not commenced and material witnesses are not examined by the sessions court.

Learned Special PP, Mr. Thimmarayarayappa has filed detailed objections opposing the bail application contending inter alia amongst others that the witnesses namely, CW-1, CW-2, CW-4, CW-5, CW-6, CW-7, CW-10, CW-11, CW-12, CW-23, CW-24, CW-26, CW-13 and CW-22 have stated in their statement about this petitioner, i.e. 3rd accused assaulting deceased Krishnappa with a long on his head and consequently causing his death. It is further contended that CW-23 and CW-24 have given statements under Section 164, Cr.P.C. before the jurisdictional magistrate. It is contended that the Hon''ble apex court has also dismissed the bail application filed on behalf of this petitioner and that there is a direction to the trial court to expedite trial. Hence he has requested the court to dismiss the bail petition.

After going through the records and hearing arguments, the point that arises for consideration of this court is:

"Whether there are any changed circumstances to grant regular bail to this petitioner under Section 439, Cr.P.C?"

REASONS

This is the third consecutive bail application under Section 439, Cr.P.C. The first bail application in Crl.P.6832/13 before this court was got dismissed as not pressed on 18.12.2013. The second petition was dismissed by this court in Crl.P.1961/14 on 15.7.2014 by assigning elaborate reasons as to why the petitioner is not entitled to be released on bail. Any number of bail applications could be filed provided there are changed circumstances. Out of the accused named in the charge sheet, 33 persons have already been released on bail by this court and the details of the same are found as under:

Accused No. 19 was released by this court on 9.4.2015 in Crl.P.211/15 and the allegation against him was hatching conspiracy and assaulting and damaging the car. Similarly accused No. 15 came to be released on 12.1.2015 in Crl.P.736/14 and the allegation against him was hatching conspiracy and assaulting CW-1 and damaging Innova car. The 11th accused who had allegedly hatched a conspiracy and assaulted on the hand of BEML Krishnappa with a long and fled from the place came to be released on 13.7.2015 in Crl.P.2368/15.

This court had directed the sessions court to frame charges at the earliest. It had been submitted before this court by the learned Spl. Public Prosecutor that 22.11.2014 was the date fixed for framing charges. A direction had also been given to hold trial on day-today basis as per the provisions contained in Section 309, Cr.P.C, while dismissing the bail application of Prashanth Gowda in Crl.P.5529/14. Paragraph 6 of the said order dated 19.11.2014 is relevant and is extracted below:

''Accordingly, the petition is dismissed. Notwithstanding the dismissal of this petition, the petitioner is at liberty approach this Court after examination of the material witnesses in the Sessions Court. At this stage, it is submitted by the learned Special Public Prosecutor that, date is fixed on 22.11.2014 for framing of the charges in this case. It need not be reiterated that when once the trial begins, the matter has to go on day-to-day basis as per mandatory provisions of Cr.P.C. Thus, there can be no apprehension that there will be delay in the trial.''

This petitioner had approached the Hon''ble Supreme Court seeking bail and the same came to be dismissed in SLP.(Crl.) No. 6983/14 on 27.1.2015. Following is the order passed by the Hon''ble apex court:

"Having heard learned senior counsel for the petitioner as well as the respondent-State and taking note of the nature of offence alleged against the petitioner, who is A3, we proceed to pass this order.

The petitioner is in custody from 15.10.2012, according to the respondent, as many as 41 accused were arrayed and that so far 18 accused persons have granted bail. It is also stated that the charge-sheet has already been filed and the respondent has got about 15 eye-witnesses to be examined. Taking into account the allegation of the role played by the petitioner along with the prime accused A1 to A11, we are of the considered view that in the first instance, the respondents can be directed to cooperate with the Trial Court for commencing the trial and examine the eyewitnesses expeditiously. With that view, we also direct the Trial Court to commence the trial forthwith with a further direction to the respondent to produce the eye-witnesses without any further delay and complete the examination of eye-witnesses within six months from the date of receipt of a copy of this order. We also give liberty to the petitioner to move the Trial Court for bail after six months, whether or not the prosecution was able to complete the examination of the eye-witnesses and the same to be considered on its own merits and in accordance with law.

With that liberty to the petitioner, this special leave petition stands dismissed."

It is submitted before this court by the learned Spl. Public Prosecutor, Mr. Thimmarayappa that 9.10.2015 was the date on which trial was expected to commence and trial has commenced. In fact, the Hon''ble apex court had directed the trial court to commence trial forthwith and record the statements of witnesses without further delay and complete their examination within 6 months from the date of receipt of a copy of the order passed in No. 6983/14.

Almost 10 months have elapsed since the passing of the order by the Hon''ble Supreme Court. As many as 335 persons have been cited as witnesses in the charge sheet filed by the respondent police. Even to examine the main eyewitnesses, it takes sufficient time. In this view of the matter, it is not advisable to reject the bail application. On the other hand, it would be appropriate to release the accused on bail imposing appropriate conditions on him and also reiterating the direction already given by the apex court.

In the light of similarly placed accused being already released on bail and in the light of delay in commencement of trial and consumption of sufficient time in examining the main witnesses and concluding trial, the petitioner is entitled to be released on bail.

In the result, the petition filed under Section 439, Cr.P.C. is allowed. Petitioner shall be enlarged on bail subject to the following conditions:

"(1) Petitioner shall execute a personal bond for a sum of Rs. 5,00,000/- (rupees five lakhs only) each with two sureties for the like sum to the satisfaction of the jurisdictional court;

(2) He shall not tamper with the evidence or threaten the prosecution witnesses in any manner and shall not lure them in any manner;

(3) He shall mark their attendance twice in a week, i.e. on every Wednesday and Sunday before the Dy. Superintendent of Police, Bengaluru Rural District, between 9.00 a.m. and 5.00 p.m. till the case is disposed of, without fail;

(4) He shall attend the court on all the dates of hearing without fail and shall not cause delay in holding the trial.

(5) If any one of the conditions is violated, prosecution is at liberty to seek cancellation of the bail from this Court."

The respondent police is directed to give adequate protection to the witnesses sought to be examined by the prosecution. The learned counsel representing the accused and the Spl. Public Prosecutor to co-operate with the learned judge in conducting trial in a smooth manner, as also expeditiously.

Registry to send a copy of this order to the learned sessions judge dealing with the matter, at the earliest for reference.