Imran Ali vs State of Karnataka

L. Narayana Swamy, J.—Heard the learned counsel for the petitioner and the learned Government pleader appearing for the respondent - State.

The petitioner is accused No. 4 in a case bearing Crime No. 173/2012 (S.C. No. 227/2013) of Soladevanahalli P.S., Bangalore for the offences punishable under Sections 120B , 448 , 392 , 397 and 302 of IPC and Sections 25(1)(A) and 29(a)(b) of Arms Act. Investigation has been completed and charge sheet is filed. The petitioner is in judicial custody since 20.11.2012. Hence, he has filed regular bail application under Section 439 of Cr.P.C.

Heard the learned counsel for the petitioner and the learned Government pleader appearing for the respondent - State.

This petition is filed under Section 439 of Cr.P.C. Earlier, a criminal petition in Crl. P. 664/2013 was filed seeking his release on bail was dismissed as withdrawn on 26.11.2014. On last occasion, the learned counsel for the petitioner submitted by referring the directions issued by this court in Crl. P. No. 596/2014 and Crl. P. 4021/2014. Both petitions were dismissed rejecting the bail whereas in Crl. P. 596/2014, the observations made by the learned Judge of this Court with a direction to the learned Judge to take up the case of the petitioner on priority basis and dispose of the case as early as possible but not later than four months from the date of receipt of copy of the Order. Thereafter, again they preferred a petition in Crl. P. 4021/2014, which was rejected by this court on 08.09.2014. The observation made with a direction to dispose of the matter within the extended period of three months, without seeking further extension of time. In case if the matter is not disposed of within the said period of three months, the petitioner-accused is at liberty to move the concerned court seeking his release on bail. It is duty on the part of the Trial Court to dispose of the same at the earliest.

The submission made by the learned counsel for the petitioner in the light of the observation made by the Trial Court at para-10 of the Order is examined which reads as under:

"There are sufficient materials before the court to support the case of the prosecution. At this stage, it is not proper to state about whether there are direct or indirect circumstances against the accused persons to deny bail. Now, the case is in arguments stage. If these accused/petitioners are granted regular bail, there are chances of fleeing from justice and it obstructs the disposal of the case at the earlier point of time. I am of the view that there are prima-facie materials before the accused to support the case of the prosecution that the accused have committed the alleged offence".

Heard both. Perused the records. The cases of the petitioners have been rejected for more than two occasions. In addition to the rejection order by the learned Sessions Judge, an observation has been made in Para-10 of the Order in S.C. No. 227/2013 of the Trial court that if these accused - petitioners are granted regular bail, there are chances of fleeing from justice and it obstructs the disposal of the case at the earliest point of time. I am of the view that there are prima-facie materials to support the case of the prosecution that the accused have committed the alleged offence. This has been confirmed and reiterated by this Court while referring judgments of Hon''ble Apex Court. When the case of the petitioner is rejected on two occasions, then the question would be whether this Court can re-open the case unless there is a change of circumstances. The Hon''ble Supreme Court had held in some cases that unless there is a change in circumstances of case, it is not open for the Court to reopen the case for the reasons assigned in rejecting the bail. It is binding on the subordinate court also. I do not find any change in circumstances to reconsider the case.

Learned counsel for the petitioner had taken time to make submission whether this court while exercising power under Section 439 of Cr.P.C. can direct the Trial Court to dispose of the matter within a particular period. In support of his submission, today the learned counsel submits that this court has got inherent and statutory power to direct the trial court to fix the trial to dispose of the matter since the speedy trial as held by the Supreme Court is a fundamental right to life, when the constitutional power is available, this court while exercising any power, the statutory power under Section 439 Cr.P.C. can direct speedy disposal, in the light of the judgment of Hon''ble Supreme Court in Vinod Bhandari Vs. State of M.P. referred in para-12 and another judgment in Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., , another judgment in P. Ramachandra Rao Vs. State of Karnataka, .

The above referred judgments of the Hon''ble Supreme Court submitted by the learned counsel for the petitioner have been examined. I have gone through these judgments. The Supreme Court has got inherent power, while examining the said power it is held that right to speedy trial is a fundamental right implicit in Article 21 of the Constitution. I emphasize on the speedy trial under Article 226 of Constitution of India. In this regard, when exercise of power under Section 439 , is concurrent power to both the trial court and this court can exercise the same power. While such power is exercised, the inherent power cannot be invoked. When a petition is filed under Section 482 of Cr.P.C. or Article 226 of Constitution of India, this inherent power and statutory power under Article 21 of Constitution of India could be exercised. Under these circumstances, this court is to restrain the inherent and statutory power under Constitution of India while exercising power under Section 439 of Cr.P.C.

The submission of the learned counsel for the petitioner is that the fundamental right of the accused is paramount consideration. It should prevail over the statutory power. It is well accepted principle that constitutional power and fundamental right prevail over all other rights, but while exercising that power, the court has to keep in mind balance between the fundamental rights of a person and also the interest of the State. When these two facts come before the court for choosing, the court invariably has to chose the interest of State which is paramount and also in similar circumstance, when State''s interest and individual interest is clashed, without hesitating, the court has to chose the interest of the State, which is paramount in nature. It prevails over all the rights and it depends upon the facts and circumstances of the case. The society demands that the offender/s are to be punished, in the interest of the Society, in order to prevent infringement of fundamental rights. It has to be exercised keeping in mind the statutory right of an individual or the interest of the Society. The observations made by the trial court and also this court are accepted. I further clarify that while exercising power under Sections 438 or 439 of Cr.P.C. directions cannot be granted to the Court after reserving liberty to the petitioner to surrender before the trial court and approach the trial court and make petition for regular bail and in the event, if such petition is made, it is for the learned Judge to pass appropriate order. This court can observe that the trial court may dispose of the petition if possible on the same day. Further directions while rejecting or disposing of the petition under Sections 438 or 439 , directions cannot be given to the Trial court to complete the trial within its stipulated time. The learned trial judge has to decide in such case, he has to give priority to the above observations depending upon the facts and circumstances of the case whether the petition is filed either under 482 of Cr.P.C. or Article 21 of Constitution of India.

With these observations, the petition is rejected.