Birappa S/O Hunachappa Maratur vs The State Of Karnataka And Anr
2021 Latest Caselaw 5151 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 1ST DAY OF DECEMBER 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

          CRIMINAL APPEAL No.200225/2021

BETWEEN:

BIRAPPA
S/O HUNACHAPPA MARATUR
AGE: 45 YEARS, OCC: AGRICULTURE
R/O HASNAPUR VILLAGE
TQ.AND DIST.KALABURAGI-585 308
                                            ... APPELLANT

(BY SRI SHRAVANKUMAR MATH, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       THROUGH FARHATHABAD POLICE STATION
       REPRESENTED BY ADDL. SPP
       HIGH COURT OF KARNATAKA
       KALABURAGI BENCH-585103

2.     SRI GOUDAPPAGOUDA
       S/O BHEEMARAYAGOUDA MALIPATIL
       AGE: 54 YEARS, OCC: AGRICULTURE
       R/O HASANAPUR VILLAGE
       TQ. AND DIST. KALABURAGI-585 308
                                          ... RESPONDENTS

(BY SRI SHARANABASAPPA M.PATIL, HCGP FOR R1;
 NOTICE TO R2 SERVED)
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    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14(A)
OF SC/ST (PA) ACT, 1989, PRAYING TO SET ASIDE THE ORDER
DATED 16.01.2021 CANCELLING BAIL OF THE PETITIONERS IN
S.C. SC/ST No.52 OF 2015 CRIME No.48/2015 PUNISHABLE
UNDER SECTIONS 143, 147, 323, 324, 504, 506 R/W SECTION
149 OF IPC, AND SECTION 3(1)(X) OF SC & ST ACT,
FARTHABAD POLICE STATION PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS COURT AT KALABURAGI.


      THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:


                        JUDGMENT

This appeal is filed under Section 14A(2) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, (hereinafter for brevity referred to as

'the SC/ST (PA) Act') praying this Court to set aside the

order dated 16.01.2021 canceling the bail of the appellant

in Special Case No.52/2015.

2. Heard the learned counsel for the appellant

and the learned High Court Government Pleader for the

State.

3. The factual matrix of the case is that police

have registered a case against the appellant herein and

other accused for the offences punishable under Sections,

143, 147, 323, 324, 504, 506 read with section 149 of IPC

and under section 3(1)(x) of the SC/ST (PA) Act. The trial

was commenced before the trial Court and this appellant

did not choose to appear before the trial Court and hence,

the trial Court had cancelled the bail of this appellant and

other accused persons, since witness CW.9 was present

before the Court, the witness was bound over and NBW

was issued to this appellant and other accused persons

and also issued notice to their sureties. This appellant

earlier approached this Court in Criminal Petition

No.200470/2021 invoking section 482 of Cr.P.C., and also

appellant approached this Court in Criminal Petition

No.201519/2021 and the same was also withdrawn on

12.11.2021 with liberty to file this appeal. Hence, the

present appeal is filed.

4. Learned counsel for the appellant would submit

that this appellant undertakes to appear before the trial

Court on each date of hearing and he will not be absent

unless for valid reason which are beyond his control. He

further undertakes to co-operate in the trial as he is the

sole breadwinner of the family and cancellation of bail by

the learned trial Court judge is erroneous. Since he could

not arrange the bond amount, the earlier petition was

withdrawn and hence, he was constrained to file the

present appeal. The learned counsel would also submit

that accused Nos.4 and 5 have given relief as prayed in

the earlier petitions, on the ground of parity this appellant

may be granted the same relief.

5. Per contra, learned High Court Government

Pleader for the State would submit that earlier petition was

filed under section 482 of Cr.P.C., and now he has filed the

appeal and this appellant was absconded and not appeared

before the trial Court when the witnesses have appeared

before the trial Court and hence, the trial Court has rightly

cancelled the bail and now one more appeal seeking bail

cannot be entertained. The order passed in Criminal

Petition No.200470/2021 is not applicable to the appellant

herein.

6. Having heard the learned counsel for the

appellant and the learned High Court Government Pleader

for the State and on perusal of the order sheet of the trial

Court, when the witness CW.9 was present, this appellant

along with other accused persons have not appeared

before the Court and the advocate also has remained

absent, as a result, CW.9 was bound over and trial Court

cancelled the bail and issued NBW when the accused did

not appear before the trial Court. The first course open to

the trial Court was to issue NBW and also to issue notice to

the surety, instead the trial Court cancelled the bail

directly and though this order was passed on 16.01.2021

this appellant did not choose to question the order or to

appear before the trial Court and belatedly in the month of

November-2021, this appeal is filed. No doubt, appellant's

counsel would submit that though the appellant has filed

earlier petition, due to financial difficulties he was unable

to pay the bond amount as directed by this Court and

hence, the appeal was withdrawn in respect of this

appellant. Subsequently another petition was also filed.

Having taken note of the earlier petition filed by him and

the same was withdrawn and the Court has not passed any

order on merit, even subsequent petition was also not on

merit and having considered the material available on

record, this Court in the earlier petition granted relief in

favour of accused No.4 and 5, directing to pay a sum of

Rs.10,000/-each towards bond amount and execute a

fresh bond with fresh surety for the likesum in which

event, the learned Special Judge shall exercise his

jurisdiction in releasing them by recalling the non bailable

warrant issued against them and whether the order was

right or wrong and already relief is granted in favour of

other accused persons and also observation made in the

order that this appellant is also at liberty to approach this

Court or the Special Court with the similar prayer and

dismissal of this petition as against them would not come

in the way of making such application. When such being

observation is made in the said order and the appellant is

also ready to pay the amount and this appellant did not

approach the Special Court and directly approached this

Court, having taken note of the said order, this appellant is

entitled for the same relief.

7. In view of the discussion made above, I pass

the following:

ORDER

The appeal is allowed. The order dated 16.01.2021

canceling the bail of the appellant in Special Case

No.52/2015 is set aside.

The appellant is directed to pay a sum of Rs.10,000/-

towards bond amount and execute fresh bond with fresh

surety for the likesum in which event learned Special

Judge shall exercise his jurisdiction in releasing this

appellant by recalling the order of NBW issued against him

executing the fresh surety.

The appellant shall appear before the trial Court and

co-operate for trial without seeking any exemption till

completion of trial.

Sd/-

JUDGE

VNR