Smt. Uma N. Bera vs Sri Rakesh G. @ Bhima and The State of Karnataka

H.N. Nagamohan Das, J.—In this petition the petitioner has prayed to cancel the bail order dated 08.06.2012 in Crl. P. No. 2866/2012 passed by this court as per Annexure-G enlarging respondent No. 1 on some conditions. Petitioner is the wife of deceased Nitish Bera. On 27.03.2012 at about 10.00 pm petitioner''s husband telephoned to the landline and informed the complainant-petitioner that he is sending a person and to handover him the jewellery and the cash. Thirty minutes later a person came to the house of the petitioner and threatened to hand over the jewels and cash if she wants her husband. Accordingly, the petitioner handed over the jewels and cash to the said person. Thereafter the petitioner filed a complaint before the second respondent police and the same came to be registered in Cr. No. 152/2012 for the offences punishable under Sections 366 and 384 IPC against unknown person. Subsequently the case was transferred to the CCB police for further investigation. The CCB police arrested the first respondent and (sic) others and on interrogation included the offences punishable u/s 120(B), 363, 364A, 384, 302, 201 read with 149 IPC.

When the matter was under investigation the first respondent filed a petition u/s 439 in Crl. Misc. No. 1878/2012 before the Fast Track Court at Bangalore and the same came to be rejected vide order dated 03.05.2012. Thereafter, the first respondent filed a petition before this court in Crl.P. No. 2731/2012 for grant of bail u/s 439 Cr. P.C. on the ground that he is innocent, falsely implicated in the crime, studying in L.L.M., belongs to a respectable family and permanent resident of Bangalore city and will abide by any conditions to be imposed by this court. In Crl. P. No. 2731/2012 first respondent filed a memo seeking withdrawal of the petition. Accordingly this court vide order dated 05.06.2012 dismissed the Crl.P. No. 2731/2012 as withdrawn. On the very next date i.e. on 06.06.2012 the first respondent filed another petition before this court in Crl.P. No. 2866/2012 for grant of bail on the ground that he is studying L.L.M. and his examination starts from 15.06.2012. This court vide order dated 08.06.2012 allowed Crl.P. No. 2866/2012 mainly on the ground that first respondent is a student appearing for L.L.M. examination from 15.06.2012 subject to certain conditions.

Now the petitioner/complainant is before this court for cancellation of bail order dated 08.06.2012 in Crl.P. No. 2866/2012 passed by this court on the ground that first respondent by misleading the facts and by producing fabricated documents obtained the bail order.

Heard arguments on both the side and perused the entire writ papers.

Sri Vivek Subba Reddy learned counsel for first respondent firstly contends that grant of bail is between the prosecution and the accused. Therefore, the present petition filed by the complainant is not maintainable. I decline to accept this contention of learned counsel for first respondent. Petitioner is the complainant and she is none other than the wife of deceased Nitesh Bera and as such she is aggrieved party entitled to maintain the present petition u/s 439(2) Cr.P.C. The Supreme Court in Puran Vs. Rambilas and Another etc. etc., held as under:

The framework of Section 439(2) CrPC indicates that it is a power conferred on the courts mentioned therein. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves a petition. The power so vested in the High Court can be invoked either by the State or by any aggrieved party. The said power could also be exercised suo motu by the High Court. Therefore, any member of the public, whether he belongs to any particular profession or otherwise can move the High Court to remind it of the need to exercise its power suo motu. There is no barrier either in Section 439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail then its can dismiss the petition. It is always open to the High Court to cancel the bail if it feels that there are sufficient reasons for doing so.

It is not in dispute that the bail petition filed by the first respondent u/s 439 Cr.P.C. in Crl. Misc. No. 1878/2012 before the Fast Track Court at Bangalore came to be rejected vide order dated 03.05.2012. Further it is not in dispute that the criminal petition filed by the first respondent before this court in Crl. P. No. 2731/2012 came to be dismissed as withdrawn vide order dated 05.06.2012. On the very next day the first respondent filed Crl. P. No. 2866/2012 before this court u/s 439 Cr.P.C. In the said petition first respondent has specifically pleaded that he has not filed any other petition before this court. It is settled legal position of law that an accused is entitled to file successive bail petitions in the changed circumstances. But it is obligatory on the part of the accused to disclose to the court the bail petitions filed earlier and its outcome. In the instant case, the first respondent has suppressed the fact of filing the bail petition before the Fast Track Court and also this court. In identical circumstances this court in Netravatti Venkatesh and Others Vs. State of Karnataka and Others, held that suppression of fact of filing earlier bail petition amounts to playing fraud on the court. On this ground the impugned order granting bail to the first respondent is liable to be cancelled.

In Crl. P. No. 2866/2012, the first respondent has specifically pleaded in para-6 as under

The Petitioner is an advocate practicing at Bangalore and his father is also an advocate practicing at Bangalore and they are having good reputation in the bar. He never involved in the alleged offence. The Petitioner is also studying L.L.M. and his examination of L.L.M. starts from 15 June 2012. If this Hon''ble court will not release him on bail, he may not appear before the examination and he will be put to great loss and injury

Petitioner has produced material on record to show that Annamalai University conducted L.L.M. examination between 19.05.2012 and 21.05.2012. The contention of the first respondent that he wanted to write L.L.M. examination on 15.06.2012 is factually incorrect, misleading and based on fabricated documents. The first respondent in his statement of objections admitted that by mistake his Lawyer produced the admission ticket of L.L.M. course instead of producing the admission ticket issued for the examination for Lecturer post. Thus the first respondent admits the mistake committed by him in Crl. P. No. 2866/2012. On the basis of this admission of first respondent the impugned order of granting bail is liable to be cancelled.

The explanation of the first respondent that by mistake his Lawyer produced the admission ticket relating to L.L.M. examination instead of admission ticket for lecturer post. This Court vide order dated 12.12.2012 directed the advocate Sri Y.R. Sadashiva Reddy to file an affidavit in this regard. Accordingly, learned counsel filed an affidavit stating that the first respondent''s father who is an advocate gave instructions and accordingly he drafted and presented the petition in Cr. P. No. 2866/2012. From this material on record it is clear that the lawyer Sri Y.R. Sadashiva Reddy has not committed any mistake. Again the petitioner made false allegation against his advocate. By furnishing false information the first respondent secured an order of bail and it is not open for him to offer explanation for the mistake that he has committed. The explanation offered by the first respondent in his objection statement cannot be taken as substitute for the false information given in the criminal petition for grant of bail. Therefore, the impugned order is liable to be cancelled. It is brought to my notice that investigation is completed and charge sheet is filed. In the changed circumstances the petitioner is entitled to file a fresh petition for grant of bail. For the reasons stated above, the following:

ORDER

I) Petition is hereby allowed.

II) The impugned order of bail dated 08.06.2012 in Crl. P. No. 2866/2012 is hereby cancelled.

III) The first respondent to surrender before the Fast Track Court, Bangalore and to seek for regular bail in the changed circumstances. In that event the Fast Track Court to consider the same in accordance with law and as expeditiously as possible.