Karnataka High Court
Manoj Kundar @ Manju @ Military ... vs State Of Karnataka By on 19 February, 2021
Author: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.43/2021
BETWEEN:
1. Manoj Kundar
@ Manju @ Military Manju
@ Chithrapu Manju
Aged about 28 Years
S/o Janardhan
R/o at Indira Nilaya
Chithrapu Village
Mulki Post, Mangaluru
D.K. District-574154
2. Chandrashekara
@ Tikki Annu @ Annu
S/o Appu Poojary
Aged about 35 Years
R/o at Athur Kapikadu
Panja Post, Pakshikere
Mangalore Taluk
D.K. District-574 232
...Appellants
(By Sri Nishit Kumar Shetty, Advocate)
AND:
State of Karnataka by
Mulki Police Station
Represented by
2
State Public Prosecutor
High Court Building
Bangalore- 560 001
... Respondent
(By Sri V.M. Sheelvant, SPP-1 a/w
Sri Thejesh P., HCGP)
This Criminal Appeal is filed under Section 12 of the
Karnataka Control of Organized Crimes Act, 2000, praying
to set aside the order dated 23.12.2020 in Crime
No.155/2017 (Spl.C.C.No.283/2018) for the offences
punishable under Sections 447, 506, 387, 427 r/w Section
34 of IPC and Section 3, 5(1)(a), 5(2) and 27 of Indian
Arms Act, 1959 and Section 3 of KCOCA Act-2000, made
by the Court of Principal District and Sessions Judge,
Mysuru and release the appellants on statutory bail under
Section 167(2)(a)(i) of Cr.P.C.
This appeal coming on for Admission, this day,
having heard through video conference at Kalaburagi
Bench, the court delivered following:
JUDGMENT
Heard learned counsel for the appellants and the
learned State Public Prosecutor-1 on behalf of the
respondent - State.
2. The appellants/accused Nos.1 and 2 are in
appeal against the order passed by the Prl. District &
Sessions Judge at Mysuru in Spl. Case No.283/2018
rejecting the application filed by the appellants for
statutory bail under Section 167(2)(a)(i) of Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C.').
3. At the earlier instance the appellants had
moved a similar application under Section 167 (2) of
Cr.P.C. But the trial court rejected the said application
on the ground of bar contained in Section 22(5) of
Karnataka Control of Organized Crimes Act, 2000 ( for
short, 'KCOCA Act'). When the appellants took the
matter to this court in Crl.A.No.858/2020, this court by
order dated 02.11.2020 set aside the order of the trial
court as the bar engrafted in Section 22(5) of the
KCOCA Act was held ultra vires by the Hon'ble Supreme
Court in the case Rajesh Nayak & Ors. Vs. The State
By Vitla Police Bantwal Taluk in Crl.A.No.20/2018
[Special Leave Petition (Crl.) No.9140/2017].
4. On the heel of the above order, the
appellants moved another application for their release
under Section 167(2)(a)(i) of Cr.P.C. on account of non-
submission of charge-sheet within 90 days from the date
of the remand of the appellants. However, the learned
trial judge has rejected the said application on the
specious reason that no right had accrued to the
appellants before filing charge-sheet and that at best it
was an inchoate right until 28.03.2018.
5. The learned State Public Prosecutor-1
appearing for the respondent - State fairly concedes that
the charge-sheet was filed on 26.06.2018 much after
the lapse of 90 days and the application for extention of
time was also filed after the lapse of 90 days from the
date of remand of the accused. In the light of this
submission the reasoning of the trial court that since the
charge-sheet has already been filed the, appellants have
forfeited their right for bail is patently illegal, perverse
and contrary to the law laid down by the Hon'ble
Supreme Court in the case of Union of India Vs.
Nirala Yadav @ Raja Ram @ Deepak Yadav, (2014)
9 SCC 457, wherein it held as under;
"47. Coming to the facts of the instant
case, we find that prior to the date of expiry of
90 days which is the initial period for filing the
charge-sheet, the prosecution neither had filed
the charge-sheet nor had it filed an application
for extension. Had an application for extension
been filed, then the matter would have been
totally different. After the respondent-accused
filed the application, the prosecution submitted
an application seeking extension of time for
filing of the charge-sheet. Mr. P.K. Dey,
learned counsel for the appellant would submit
that the same is permissible in view of the
decision in Bipin Shantilal Panchal (supra) but
on a studied scrutiny of the same we find the
said decision only dealt with whether extension
could be sought from time to time till the
completion of period as provided in the statute
i.e. 180 days. It did not address the issue what
could be the effect of not filing an application
for extension prior to expiry of the period
because in the factual matrix it was not
necessary to do so. In the instant case, the
day the accused filed the application for benefit
of the default provision as engrafted under
proviso to sub-section (2) of Section 167 CrPC
the Court required the accused to file a
rejoinder-affidavit by the time the initial period
provided under the statute had expired. There
was no question of any contest as if the
application for extension had been filed prior to
the expiry of time. The adjournment by the
learned Magistrate was misconceived. He was
obliged on that day to deal with the application
filed by the accused as required under Section
167(2) CrPC. We have no hesitation in saying
that such procrastination frustrates the
legislative mandate. A court cannot act to
extinguish the right of an accused if the law so
confers on him. Law has to prevail. The
prosecution cannot avail such subterfuges to
frustrate or destroy the legal right of the
accused. Such an act is not permissible. If we
permit ourselves to say so, the prosecution
exhibited sheer negligence in not filing the
application within the time which it was
entitled to do so in law but made all adroit
attempts to redeem the cause by its conduct."
6. Further the Hon'ble Supreme Court in the
case of M. Ravindran vs. Intelligence Officer,
Directorate of Revenue Intelligence, 2020 SCC
OnLine SC 867, (para-74), has held that accused is
deemed to have availed of his indefeasible right to bail,
the moment he filed an application for being released on
bail and offered to abide by the terms and conditions of
the bail order and therefore he is entitled to be released
on bail notwithstanding the subsequent filing of an
additional complaint.
7. It is clear in the instant case that the
investigation agency has sought for extension of time for
filing the charge-sheet after the expiry of 90 days
prescribed under the Code. The said application even if
allowed by the trial court did not defeat the indefeasible
right of the appellants for grant of statutory bail on
account of non-filing of the charge-sheet within the
prescribed period of 90 days from the date of remand of
the appellants. In that view of the matter, the trial court
having committed an serious error of law and fact and
has misdirected itself by rejecting the application, the
impugned order cannot be sustained. Accordingly, the
criminal appeal is allowed.
The impugned order dated 23.12.2020 passed by
the Prl. District & Sessions Judge, Mysuru in
Spl.C.No.283/2018 is set aside. Consequently, the bail
application filed by appellant Nos.1 and 2/accused Nos.1
and 2 under Section 167(2)(a)(i) of Cr.P.C. is allowed
and appellants/accused Nos.1 and 2 are ordered to be
enlarged on bail on obtaining a bond in a sum of
Rs.5,00,000/- (Rupees Five Lakh) each with two sureties
each for the likesum to the satisfaction of the trial court,
subject to further condition that:-
i) Appellants/accused Nos.1 and 2 shall
appear before the trial court on every
date of hearing without fail unless
exempted for justifiable reasons.
ii) Appellants/accused Nos.1 and 2 shall not
threaten or allure the prosecution
witnesses in whatsoever manner.
iii) Appellants/accused Nos.1 and 2 shall not
leave the territorial limits of the trial
court, without prior permission of the
trial court.
Sd/-
JUDGE
BL
