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Judgment
G. Basavaraja, J
Accused No.2 in S.C.No.82/2023 has filed application under Section 439 of Code of Criminal Procedure, 1973 seeking to release on bail.
The brief facts of the case of prosecution is that on 05th November, 2022, at 8.45 am, Jayalakshmipuram Police registered a case in No.57 of 2022 against Madappa, his sons, and others under Section 302 read with Section 34 of Indian Penal Code. The complaint was filed by Mr. Sanjay Angadi, son-in-law of the deceased R.N. Kulkarni. The complainant alleged that Mr. Kulkarni, a retired Assistant Director of Intelligence Bureau residing in Mysuru, had a dispute with Madappa over the construction of Madappa's house adjacent to Mr. Kulkarni's residence. Mr. Kulkarni had requested Madappa and his children to leave space between their properties. Mr. Kulkarni pursued legal action and obtained an injunction against Madappa's construction. Madappa challenged this order in the High Court, offering to demolish the house, if deemed illegal. The complaint claims Mr. Kulkarni said Madappa and his children aimed to harm him, citing an unverified police complaint. The deceased-R.N. Kulkarni filed a complaint before the Commissioner of Mysuru City Corporation and also filed Writ Petition No.1947 of 2022 before the High Court of Karnataka. However, on 02nd November, 2022, Mysuru City Corporation passed an order for demolition of the house illegally constructed by said Mr. Madappa.
2.1. It is also alleged that on 04th November, 2022, at 5.00 pm, Mr. R.N. Kulkarni mentioned he was going for a walk but didn't return. At 6.31 pm, his car driver informed the complainant that Mr. Kulkarni had fallen and passed away. The complainant went to Kamakshi Hospital, confirming his father-in-law's demise. Police also visited the hospital. The next day, after reviewing CCTV footage at the accident site, the complainant concluded that it was a murder. Hence complainant lodged a complaint against Mr. Madappa, his children and others.
2.2. On 07th November, 2022, the petitioner was arrested by the Respondent Police around charge-sheet against the petitioner as accused No.1 and another by name Mr. Varun as accused No.2 for offences punishable under Sections 302, 120(B), 489, 201 read with Section 34 of Indian Penal Code. The respondent police allege that accused No.1 conspired with accused No.2-Mr. Varun to commit the murder of R.N. Kulkarni and dashed him by Honda Accord car and committed his murder depicting it as an accident. A charge-sheet came to be filed against the petitioner and another for offences punishable under Sections 302, 120(B), 489, 201 read with Section 34 of Indian Penal Code. Petitioner had filed application under Section 439 of Code of Criminal Procedure before the I Additional District & Sessions Judge, Mysuru and the same was rejected on 23rd March, 2023. Hence petitioners had filed bail application in Criminal petition No.4428/2023 and the same was rejected by this Court. Now, the petitioner sought for bail on changed circumstances.
Submission of the learned counsel for petitioner Sri. K.C.Pratheep:
Learned counsel for the petitioner Sri.K.C. Pratheep submits that the plain reading of the complaint does not make prima facie case against the petitioner for which he has been charged. The entire case rests on circumstantial evidence which is to be proved at the time of trial. Even as per the case of the prosecution the deceased died on account of accident and further as per column No.17 of the charge sheet. Accused No.1 who drove the vehicle and dashed against the accused. Therefore, at this stage, even accepting the case of prosecution, the allegation of murder is against accused No.1. Hence, further custodial interrogation of the petitioner is not required. Accused No.2 having not all participated in the alleged crime, only on the basis of voluntary statement of accused No.1, the petitioner has implicated as accused No.2 and there is no prima facie material against him.
Further he submits that, the petitioner has earlier approached this Court in Crl.P.No.3755/2023 which came to be withdrawn and subsequently filed another petition in Crl.P.No.4428/2023 and this Court by its order dated 18.08.2023, dismissed the petition on merits. Further, liberty was given to the petitioner to file successive bail application if there is any positive of changed circumstances. As such, this petition is filed on medical grounds. The petitioner is in custody since 08.11.2022. The mother of the petitioner who is aged about 58 years is suffering from DM+hypertension uncontrolled CVA with seizure disorder and herpes zoster and the patient is at severe stress, needs rest and someone to look after at home as she had fallen more than 4-5 times for seizure, she is put on treatment with follow up. Since the condition of the mother of petitioner is critical, the presence of the petitioner for limited time is absolutely necessary as the father of the petitioner is normally staying away from Mysore as the petitioner father has agricultural lands at Chikkamalalli village, Bettadapura Hobli, Periyapatna Taluk which is almost 70ksms away from Mysore. The mother of the petitioner is residing in Mysore all the time. Therefore, in this time of medical urgency, the presence of the petitioner with his mother is absolutely necessary. To substantiate his arguments, he has produced medical certificate dated 01.12.2023 issued by Dr.B.A.Shanthakumar, Senior Specialist, Anesthesiologist, General Hospital, K.R.Nagar, Mysore, with medical prescriptions, lab report issued by Mallige Diagnostic Centre, medical bills, medication prescription slip issued by JSS Hospital and RTC extracts pertaining to land in Survey Nos.44/3, 18/5, 18/4, 17/3 and 17/2 of Hiremalali Village, Bettadapura Hobli, Periyapatna Taluk, Mysore and SAS receipt issued by Mysore City Corporation and Form No.1 issued by Mysore City Corporation and assessment extract issued by the Mysore City Corporation and also the decisions of the Co-ordinate Bench of this Court rendered in Crl.P.No.7575/2020 dated 12.07.2021 and Crl.P.No.6212/2020 dated 08.01.2021. On all these grounds, he sought to allow the bail application.
Submission of learned High Court Government Pleader Sri. K. Nageshwarappa:
Learned High Court Government Pleader submits that while disposing the bail application filed on behalf of this petitioner in Crl.P.No.3684/2023 c/w. Crl.P.No.4428/2023, this Court has held that there are prima-facie materials to attract the alleged commission of offence punishable under Section 302, 120B, 489, 201 read with Section 34 of Indian Penal Code.
The petitioner has not made out any new grounds/changed circumstances to file this subsequent bail application. The medical certificate issued by Dr.B.A.Shanthakumar, Senior Specialist, Anesthesiologist, General Hospital, K.R.Nagar, Mysore reveals that the petitioner's mother Smt.Pankaja M R is suffering from DM+hypertension uncontrolled CVA with seizure disorder and herpes zoster. This certificate is not issued by the concerned Neurologist. The Senior Specialist, Anesthesiologist is not a competent authority to issue this medical certificate as to the health condition of the mother of petitioner. The contents of medical certificate reveals that the mother of the petitioner is not suffering from any severe/serious disease. She has not admitted to the hospital and she is taking treatment as outpatient. On this ground, the petitioner is not entitled for any temporary bail as sought for. The alleged commission of offence is heinous in nature. If this petitioner is released on bail, it will affect the society at large. On these grounds, he sought for rejection of bail application.
Having heard the arguments on both sides, the following points would arise for my consideration:
(i) whether the petitioner/accused No.2 made out a ground to release him on bail?
(ii) what order?
My answer to the above points are as under:
Point No.1: in the negative.
Point No.2: as per final order.
Regarding point No.1:
I have examined the materials placed before this Court. A perusal of the order passed by this Court in Crl.P.No.3684/2023 c/w Crl.P.No.4428/2023 dated 18.08.2023 , this Court has observed that the prosecution has successfully brought the prima facie case against accused Nos.1 and 2. Accordingly, this Court has dismissed the petition with an observation that it is always open to the petitioners to renew there request for grant of bail with a successive bail application, if there is a positive changed circumstances.
The main ground urged by the learned counsel for petitioner is that the condition of mother of petitioner is critical and the presence of petitioner with his mother is absolutely necessary as father of the petitioner is normally staying away from Mysore and petitioner's father has agricultural lands at Chikkamalalli village, Bettadapura Hobli, Periyapatna Taluk which is almost 70kms away from Mysore.
A perusal of the medical certificate dated 01.12.2023 issued by Dr.B.A.Shanthakumar, Senior Specialist, Anesthesiologist reveals that the mother of petitioner is suffering from DM+hypertension uncontrolled CVA with seizure disorder and herpes zoster and the patient is at severe stress, needs rest and someone to look after at home as she had fallen more than 4-5 times for seizure, she is put on treatment with follow up. The prescription issued by Shrihari Clinic reveals that the age of mother of petitioner is 58 years as on 28.11.2023 and she is not admitted to the hospital as inpatient and she is taking treatment as outpatient. That there is no medical record to show that the mother of petitioner is suffering from severe/serious disease.
Considering the nature and gravity of offence and also facts and circumstances of the case, I am of the considered view that at this stage, the petitioner is not entitled for grant of bail. If the petitioner is released on bail, definitely it will affect the society at large.
Looking to the facts and circumstances of the case, it is not just and proper to grant bail to the petitioner. Hence, I answer point No.1 in negative.
Regarding point No.2:
For the aforesaid reasons and discussions, I proceed to pass the following:
ORDER
The bail application filed by the petitioner under Section 439 of Cr.P.C. is dismissed.