Sri. Ramegowda vs State of Karnataka and Pradeep Kumar @ Pradeepa @ Tolle <BR> State of Karnataka Vs Mohan Kumar @ Robbery and Pradeep Kumar @ Pradeepa @ Tolle

Budihal R.B., J.—Both these petitions are filed u/s 439(2) of Cr.P.C. by the complainant and the State respectively seeking cancellation of bail granted by the Fast Track Court-X, Bangalore City in S.C. No. 645/2013 dated 26.10.2013.

Brief facts of the case are that the complainant and the deceased Shankar were working at Sinchana Enterprises Planning Centre, situated at Vidyapeeta Circle. On 29.12.2012 at about 12.30 p.m., when the complainant was working in the office, he heard abrupt chairs sound and when he turned back, he saw Shankar coming out from his chamber and at that time, four persons holding knife, caught hold Shankar and his throat was cut, he was pushed to corner and they stabbed on his stomach, head, hand and back with knife and he was screaming and fell down. The accused persons fled away and thereby committed the offence punishable under Sections 143, 144, 147, 148, 302, 120B and 114 read with Section 149 of IPC. The Court below by its order dated 26.10.2013 in S.C. No. 645/2013 has ordered respondents-accused Nos. 4 and 5 to be released on bail. Being aggrieved by the said order, the complainant and the State have preferred these criminal petitions seeking cancellation of the said bail order.

I have heard the learned Counsel appearing for the petitioner in Crl. P. No. 7855/2013 and the learned High Court Government Pleader appearing for the petitioner in Crl. P. No. 737/2014 and the learned Counsel for respondents-accused Nos. 4 and 5 in both petitions.

Learned Counsel appearing for the petitioner-complainant, during the course of the arguments, submitted that accused Nos. 4 to 7 filed an application before the Fast Track Court-X, Bangalore in S.C. No. 645/2013 on 29.5.2013 and the same was objected by the prosecution by filing objections dated 3.6.2013. After considering the merit of the case, ultimately, the court below rejected bail application filed on behalf of accused Nos. 4 to 7 by its order dated 7.8.2013. The learned Counsel further made submission that again on 11.9.2013 another bail application was moved before the very same court on behalf of accused Nos. 4 and 5 seeking their release on bail. While filing the second bail application, accused Nos. 4 and 5 suppressed the fact of rejection of their earlier bail application by order dated 7.8.2013. He also submitted that there are no changed circumstances for filing the second bail application before the court below. The second bail application was also opposed by the prosecution by filing objection dated 21.9.2013. However, the court below allowed the second bail application and granted bail to accused Nos. 4 and 5 by its order dated 26.10.2013. He further submitted that though the court below had earlier rejected the bail application holding prima facie case against accused Nos. 4 and 5 of their involvement in the commission of the offence, granted bail on the second bail application filed by them. Hence, the said order granting bail to the said accused persons without there being any changed circumstances and suppressing the rejection order on the earlier bail application is liable for cancellation. Hence, he submitted to allow the petition and cancel the bail order. In support of his arguments, the learned Counsel for the petitioner-complainant relied upon the following decisions:

Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another,

Ram Dhan Vs. State of U.P. and Another,

Puran Vs. Rambilas and Another etc. etc.,

In Re: State of Assam And Another-CRL. REV. (Suo motu) 418/2006-2007 Crl.LJ 927

Learned HCGP appearing for the petitioner-State in Crl. P. No. 737/2014 during the course of the arguments also made the similar submission as submitted by the learned Counsel for the petitioner-complainant in Crl. P. No. 7855/2013. He submitted that the bail order dated 26.10.2013 granted by the court below is liable for cancellation

As against this, the learned Counsel for the respondents-accused Nos. 4 and 5 during the course of the arguments submitted that there is no suppression of material facts of the rejection of the earlier bail application. He submitted that fact of rejection of the earlier bail application has been pleaded in the second bail application. He also submitted that the second bail application was filed requesting the court below to consider the material facts which were not considered in the earlier order. He further submitted that there are new grounds made out by accused Nos. 4 and 5 by filing the second bail application. The court below was convinced about the grounds urged by accused Nos. 4 and 5 in the second bail application and accordingly, granted bail to accused Nos. 4 and 5 by allowing the said application. Hence, there is no illegality committed by the court below in granting bail order, though earlier bail petition was rejected by the said court. The learned Counsel further submitted that, it is not the case of the prosecution that after passing the order on the second bail application, respondent accused Nos. 4 and 5 have violated any of the conditions mentioned in the bail order. He submitted that once the bail order is granted in favour of the accused persons, it shall not be cancelled easily as it will affect liberty of the accused persons granted under the Constitution. Until and unless, there are strong grounds made out by the prosecution, bail order cannot be cancelled. The learned counsel submitted that no such grounds are made out by the prosecution in both the petitions and hence, the petitions may be rejected. In support of his contention, the learned counsel for respondents-accused Nos. 4 and 5 has relied upon the following decisions:

Mehboob Dawood Shaikh Vs. State of Maharashtra -2004 SCC(CRI) 551

Bhagirathsinh Judeja Vs. State of Gujarat,

Samarendra Nath Bhattacharjee Vs. State of West Bengal and Another,

I have perused the averments made in both the petitions seeking cancellation of the bail, the decisions relied upon by both sides which are referred above, the entire charge sheet material produced in the case and also I have considered the submissions made by both the sides.

According to the petitioners in both petitions, they are seeking cancellation of the bail order dated 26.10.2013 passed in S.C. No. 645/2013 in respect of accused No. 4 and 5, mainly on two grounds. Firstly, though the" earlier bail application was rejected by the order dated 7.8.2013, the same is suppressed while filing the second bail application, on the basis of which the impugned bail order has been passed by the Court below. Secondly, that after passing the order of rejection of the bail petition by order dated 7.8.2013, there were no changed circumstances to file the second bail application.

I have perused the averments made in the second bail application dated 11.9.2013 filed on behalf of accused Nos. 4 and 5. Nowhere it is specifically mentioned that earlier accused Nos. 4 and 5 applied for bail along with accused Nos. 6 and 7 and their bail application has been rejected by the said court by passing the order dated 7.8.2013. During the course of the arguments, the learned Counsel for the respondents accused Nos. 4 and 5 drew the attention of this Court to ground No. 7 in the subsequent bail application which is to the effect that "the accused Nos. 4 and 5 further submits that it is not observed nor considered by this Hon''ble Court of this material aspects". So it is the contention of the learned Counsel that in view of this submission in the bail application, it cannot be said that there is suppression of the rejection of the earlier bail order. It is no doubt true that in the objection statement filed by the prosecution dated 21.9.2013, it is specifically contended by the prosecution in para 11 of the objection statement that the earlier bail application has been already rejected. But looking to the averments made in the subsequent bail application according to me, accused Nos. 4 and 5 ought to have specifically mentioned that earlier, they had approached the said court seeking their release on bail and their application has been rejected. No such specific averment is made in the subsequent bail application.

Regarding second ground according to the petitioners herein, there are no changed circumstances after rejection of the earlier bail application and that while considering the said earlier bail application, the same Court and the same Presiding Officer held that there is a prima facie material about involvement of the accused Nos. 4 and 5 and hence, they are not entitled to be released on bail and accordingly, rejected the bail application. In this connection it is necessary to refer to para No. 8 and 11 of the earlier bail order dated 7.8.2013 which is as under:

As regards A-4 and 5, according to the prosecution case papers, it is noticed that A-4 and 5 were asked to stand near the office of Shankar with the two vehicles i.e., splendor vehicle and Axis two wheeler vehicle and as A-1 and A-3 and the juvenile offender came there, A-4 and 5 took them towards Tyagarajanagar in the said vehicles. Thereafter, the said two accused persons and the juvenile offender have changed their blood stained clothes in the room of the friend of A-4 and thereafter, they have gone towards Madivala tank where they have concealed the knife and clothes in the bush and thereafter, the axis vehicle was sold for Rs. 30,800/- through Raju and after collecting the said amount, they have all gone to KR Puram and A-4 and 5 returned back to the house and A-1, A-3 and juvenile offender have gone by saying that they are going to Mumbai by train. Thereafter, the accused No. 1 Chaluvaraju was enquiring him about the developments through mobile phone. A-5 also stated as stated. by A-4 before police. So the act played by A-4 and 5 is that they have taken the main offenders in their vehicles towards Tyagarajanagar to the room of the friend of A-4 and thereafter, the main offenders changed their blood stained clothes. So A-4 and 5 being members of unlawful assembly, have also participated in the commission of heinous offence. It is true that they have not assaulted nor stabbed Shankar, but they have helped the main offenders by taking them in their vehicles and thereby, helped them in commission of offence. So, I am of the opinion that A-4 and 5 are not entitled for grant of bail.

Now, coming to the statements of witnesses, it is seen that the complainant has given complaint and C.W. 2 and 3 who are the neighboring shop owners of the alleged spot and they have seen the accused persons coming to the spot. C.W. 4, 8 and 11 have spoken about the illicit relationship between A-1 and A-6. C.W. 9 has spoken about the criminal conspiracy made by the accused persons. C.W. 12, 13 have spoken about the accused Chaluvaraju and Bhagyalakshmi that they had come to Melukote temple. C.W. 14 and 15 also spoken that they have seen A-1 and 6 wandering together in Bengaluru. C.W. 16 to 18 have given their statements that the accused have gone away from the spot by their two wheeler vehicles. It is also noticed from the statements of C.W. 22 to 35 that the police have seized blood stained clothes and also conducted mahazar of the spot where A-1 to 3 were caught hold and also about seizure of hero Honda vehicle and also when the seizure of mobile phone from A-6 Bhagyalakshmi and also about seizure of Suzuki vehicle. C.W. 42 has identified the accused No. 1 who has purchased ''thali'' in his jewellery shop. C.W. 48 has conducted post-mortem examination and found that the ''death'' of deceased was caused due to shock and hemorrhage as a result of injuries to the ''neck''. So, all these evidence collected by the Investigation Officer in the case clearly make out that A-4 to 7 have actively involved in commission of crime and hence, they are not entitled for grant of bail. Hence, in my opinion, there are reasonable grounds that A-4 to 7 have committed the said offences.

Looking to the subsequent bail application, it was filed within a month and looking to the grounds urged in the said bail application, they are almost similar to that of the grounds urged in the earlier bail application. The Court below allowed the second bail application by its order dated 26.10.2013 holding that there are reasonable grounds which have been made out by accused Nos. 4 and 5 in their second bail application for grant of bail and accordingly, granted bail to accused Nos. 4 and 5. But, looking to the materials on record, they clearly go to show that there were no changed circumstances in between the period of passing of the bail order on the earlier bail application and the date of filing the second bail application so also the date of passing the order on the subsequent bail application. Whatever the materials relied and the contentions raised while considering the subsequent ban application were already considered while dealing the earlier bail application. Even perusing the charge sheet material and the statement of witnesses, more particularly the statement of witnesses of C.Ws. 16 to 18, they clearly go to show prima facie that these two accused persons were near by the place of incident, guarding and immediately, after the incident they took accused Nos. 1 to 3 on the two wheeler vehicle to a room of friend of accused No. 4 where accused Nos. 1 to 3 said to have changed their blood stained clothes. There is also material to show that one such two wheeler vehicle was sold for Rs. 30,800/- and proceeds were distributed among the accused persons and another two wheeler vehicle was seized by the investigating officer during investigation.

I have also perused the decisions relied upon by the learned Counsel appearing for the respondent accused Nos. 4 and 5 and also the principles enunciated in the said decision. Looking to the facts and circumstances involved in the case on hand and the facts and circumstances involved in those reported decisions, they are not one and the same. Therefore, they are not made applicable to the case on hand. Hence, looking to all these materials on record, I am of the opinion that the subsequent bail order dated 26.10.2013 passed by the Fast Track Court-X, Bangalore City, in S.C. No. 645/2013 is liable for cancellation.

In the result, I pass the following order:

(i) Both the criminal petitions are allowed.

(ii) The order dated 26.10.2013 passed by the Fast Track Court-X, Bangalore City, in S.C. No. 645/2013 is hereby cancelled.

(iii) Accused Nos. 4 and 5 shall surrender before the Court below trying S.C. No. 645/2013 immediately, if not, the Court below is directed to take steps to take accused Nos. 4 and 5 into the custody of the court.