Karnataka High Court
Mr Santhosh Kumar S vs The State Of Karnataka on 16 March, 2021
Author: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2021
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.358 OF 2021
BETWEEN:
MR SANTHOSH KUMAR S
S/O SWAMINATHAN,
AGED ABOUT 34 YEARS,
CASTE: SCHEDULED CASTE,
R/AT NO 50, SUJANA NAGARA,
NEAR OLD KEB OFFICE,
KAVAL BYRASANDRA, R T NAGAR POST,
BANGALORE 560032.
...APPELLANT
(BY SRI: HASHMATH PASHA, SENIOR ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY D J HALLI POLICE AND CCB POLICE
BANGALORE CITY 560045
(REP BY LEARNED STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA)
2. MR. R AKHANDA SRINIVASMURTHY (MLA)
S/O LATE RAMAYYA,
AGED 50 YEARS,
R/AT NO 32, KAVAL BAIRASANDRA,
R T NAGAR POST,
BANGALORE CITY 560032
...RESPONDENTS
(BY SRI: P. PRASANNA KUMAR, SPL PP FOR R1;
SRI: MURTHY D. NAIK, ADVOCATE FOR R2)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14-A(3) OF THE SC/ST (POA) ACT R/W 439 OF THE CODE
OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
BAIL REJECTED ORDER DATED 24.12.2020 PASSED IN
SPL.C.C.NO.744/2020 ON THE FILE OF THE LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL COURT (CCH-71) OF SC/ST (POA) ACT
BANGALORE CONSEQUENTLY ADMIT AND ENLARGE HIM ON
BAIL IN THE SAID CASE WHICH IS ARISING OUT OF
CR.NO.219/2020 OF D.J.HALLI P.S., BANGALORE FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 427, 144, 120B,
143, 145, 435, 436, 395 R/W 149 OF IPC AND SECTION 2
OF KARNATAKA PREVENTION OF DESTRUCTIONS AND LOSS
OF PROPERTY ACT WITH SECTION 3(1)(C), 3(2)(iii) (v)(va)
OF SC/ ST (POA) ACT.
THIS CRIMINAL APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
This is an appeal by accused No.33 charge sheeted for
the offences punishable under sections 143, 144, 145, 447,
448, 435, 436, 395, 427, 212, 120B r/w 149 of IPC and
Section 2 of The Prevention of Destruction and Loss of
Property Act, 1981 and section 3(2) (iii), (iv), (v), (va) of
The Scheduled Castes and Scheduled Tribes(Prevention of
Atrocities), 1989 and section 25(1B) (b) of Indian Arms Act,
1959.
2. The earlier application filed by the very same
appellant before this Court has been rejected by the
Coordinate Bench of this Court in Crl.P.No.4606/2020 dated
05th November 2020. In view of the circular issued by the
Hon'ble High Court of Karnataka, the matter was placed
before Hon'ble the Chief Justice to secure an order as to
whether the successive bail applications filed by the
appellant under section 439 Cr.P.C. could be entertained by
this Court having roster of the Special Court. The Hon'ble
Chief Justice by a special order dated 15.03.2021 has
directed to post the matter before this Court and hence, I
have heard Sri. Hashmath Pasha, learned Senior Counsel
appearing on behalf of the appellant, Sri. P. Prasanna
Kumar, learned SPP-II appearing on behalf of State-
respondent No.1 and Sri. Murthy D. Naik, learned counsel
appearing on behalf of respondent No.2-complainant.
3. At the out-set, learned Senior counsel appearing
for the appellant submitted that the instant appeal is moved
on account of the change of circumstances, inasmuch as,
the earlier application filed by the appellant before this
Court was rejected mainly on the ground that accused
No.57 under whose instructions the appellant is alleged to
have been carried out certain activities was at large, but,
since then accused No.57 has been arrested on 17.11.2020
and was remanded to custody; accused No.58 also
surrendered before this Court on 02.12.2020 and accused
No.59 was also arrested and remanded to judicial custody
on 27.01.2021. Accused Nos.57, 58 and 59 have been
enlarged on bail by orders of this Court in
Crl.A.No.242/2021 (accused No.57) c/w
Crl.A.No.218/2021(accused No.59) dated 12.02.2021 and
Crl.A.No.14/2021(accused No.58) dated 05.02.2021. He
further submitted that upto the submission of the charge
sheet on 12.10.2020, the appellant was not named either in
the remand applications or in any of the records, until his
arrest on 25.08.2020. Further, the learned Senior Counsel
pointed out that there are no allegations whatsoever that
the appellant was either a party to the alleged conspiracy
nor is there any material to show that he abetted to the
commission of the offences. The only allegation leveled
against the appellant is that he being the follower of
accused No.57, he was found in Hasina Hall during the
conspiracy that is alleged to have taken place three months
earlier to the alleged incident, on 22.05.2020. Under the
said circumstances, accused Nos.57, 58 and 59 having been
enlarged on bail, on the principle of parity, the appellant is
also entitled to the benefit of bail.
4. The appeal is seriously opposed by learned SPP-II
appearing on behalf of the State as well as learned counsel
appearing for second respondent on the ground that the
contentions urged by the appellant having already been
heard and considered by this court in the earlier application,
this Court cannot sit in an appeal against the said order nor
can hold a different view from the one taken by this Court
as the appellant has not been able to make out any
changed circumstances except that in Crl.R.P.No.34/2016
c/w. Crl.R.P.No.1237/2018 dated 18.01.2021, it has been
held by this Court that CCB police which conducted the
investigation was not a police station and had no authority
to investigate into the alleged offences. Even in this regard,
learned SPP-II would submit that the order passed by this
Court in Crl.R.P.No.34/2016 c/w Crl.R.P.No.1237/2018 has
been stayed by the Hon'ble Supreme Court, as such, there
is no basis for the appellant to maintain successive bail
applications.
5. In support of his submissions, learned Senior
Counsel appearing for the appellant has placed reliance on
the decision of this Court in the case of
Sri.G. SHANTHKUMAR v. STATE OF KARNATAKA BY PEENYA
P.S. BANGALORE, REP. BY ITS PUBLIC PROSECUTOR, HIGH
COURT BUILDING, BANGALORE., 2014 SCC ONLINE KAR
6607 and further placing reliance on the decision of the
Hon'ble Supreme Court in BABU SINGH AND OTHERS v.
STATE OF U.P., (1978) 1 SCC 579 emphasized that "an
order refusing an application for bail does not necessarily
preclude another on a later occasion giving more materials,
further developments and different considerations and
through all these circumstances, we cannot accede to the
faint plea that we are barred from second consideration at a
later stage and an interim direction is not a conclusive
adjudication and updated reconsideration is not over-
turning an earlier negation. In this view, we entertain the
application and evaluate the merits".
6. Further, to bring home the point that while
considering the successive bail applications, the Court is
entitled to consider the reasons and grounds which
prevailed with the court for rejecting the application,
learned counsel has placed reliance on the decision in
LT. COL. PRASAD SRIKANT PUROHIT v. STATE OF
MAHARASHTRA, (2018) 11 SCC 458, wherein at para 30, it
is held as under:-
"Before concluding, we must note that though
an accused has a right to make successive
applications for grant of bail, the court
entertaining such subsequent bail applications
has a duty to consider the reasons and grounds
on which the earlier bail applications were
rejected. In such cases, the court also has a
duty to record the fresh grounds which persuade
it to take a view different from the one taken in
the earlier applications."
7. Keeping in mind the above principles, I have
considered the order passed by the Coordinate Bench of this
Court as well as the material relied on by learned Senior
Counsel for the appellant especially the subsequent events
that have taken place after rejection of the application filed
by the appellant. From the reading of the earlier order
passed by this Court, it is evident that the application filed
by the appellant was rejected mainly on the ground that
accused No.57 was at large. This is evident from the
concluding para of the order dated 05.11.2020 in
Crl.P.No.4606/2020, which reads as under:-
"Petitioner no.1 is personal secretary of accused
no.57, it is stated so in the petition itself, 2nd
petitioner also appears to be follower of accused
no.57. In a circumstance where accused no.57
has remained away without being available for
investigation, if bail is granted to the petitioners
at this stage, I do not think that further
investigation will see smooth completion.
Therefore, I am of the opinion that petition
deserves to be dismissed and ordered
accordingly."
8. Here itself, it is relevant to note that material
allegations leveled against the appellant in the charge sheet
is that the appellant herein is the follower of accused No.57.
To be specific, the substance of accusations leveled against
the appellant reads as under:-
"DgÉÆæUÀ¼ÁzÀ 57, 58, 59, 60 gÀªÀgÀÄUÀ¼ÀÄ ¸ÁQë-1 gÀªÀgÀ
gÁdQÃAiÀÄ «gÉÆâüAiÀiÁVzÀÄÝ, ¸ÁQë-1 gÀªÀgÀ ºÉ¸ÀgÀ£ÀÄß PÉr¹ ¸ÀܽÃAiÀÄgÀ°è
¸ÁQë-1 gÀªÀgÀ §UÉÎ PÉlÖ C©ü¥ÁæAiÀÄ §gÀĪÀAvÉ ªÀiÁr CªÀgÀ «gÀÄzÀÝ UÀ¯ÁmÉ
ªÀiÁr¹ gÁdQÃAiÀÄ ¯Á¨sÀ ¥ÀqÉAiÀĨÉÃPÉA§ÄªÀ ºÀÄ£ÁßgÀzÀ°è EzÀÄÝ, F §UÉÎ
F WÀl£ÉUÀÆ 3 wAUÀ¼À ªÉÆzÀ®Ä DgÉÆæ 57 ªÀÄvÀÄÛ 58 gÀªÀgÀÄUÀ¼À
£ÉÃvÀÈvÀézÀ°è DgÉÆæUÀ¼ÁzÀ 25, 33, 35, 59 ºÁUÀÆ ªÀÄÄAvÁzÀªÀgÀÄ r.eÉ.
ºÀ½î oÁuÁ ¸ÀgÀºÀzÀÄÝ ºÀ¹Ã£Á ºÁ¯ï£À°è ¸ÉÃj M¼À¸ÀAa£À ¸À¨sÉAiÀÄ£ÀÄß
ªÀiÁrgÀÄvÁÛgÉ.
¸ÁQë-1, gÀªÀgÀ CPÀÌ£À ªÀÄUÀ£ÁzÀ £À«Ã£ï£ÀÄ ªÀÄĹèA zsÀªÀÄð
UÀÄgÀÄUÀ¼À §UÉÎ DPÉëÃ¥ÁºÀð ¥ÉƸïÖ ªÀiÁrgÀĪÀ «µÀAiÀĪÀ£ÀÄß DgÉÆæ-57,
58, 59, 60 gÀªÀgÀÄUÀ¼ÀÄ vÀªÀÄä gÁdQÃAiÀÄ ¯Á¨sÀPÉÌ §¼À¹PÉÆAqÀÄ F »AzÉ
ªÀiÁrzÀÝ M¼À¸ÀAa£À ¸À¨sÉAiÀÄ wêÀiÁð£ÀzÀAvÉ ¸ÁQë-1 gÀªÀgÀÄ ¥Àj²µÀÖ
eÁwUÉ ¸ÉÃjgÀvÁÛgÉ JAzÀÄ w½¢zÀÝgÀÆ ¸ÀºÀ CªÀgÀ «gÀÄzÀÝ zÉÆqÀØ ªÀÄlÖzÀ°è
UÀ¯ÁmÉ ªÀiÁr¸À¨ÉÃPÉAzÀÄ wêÀiÁ𤹠CzÀgÀAvÉ DgÉÆæ 57, 58
gÀªÀgÀÄUÀ¼ÀÄ ¸ÀܽÃAiÀÄ ªÀÄĹèêÀÄgÀ£ÀÄß ¸ÁQë-1 gÀªÀgÀ «gÀÄzÀÝ ¥ÀæZÉÆâü¹
UÀ¯ÁmÉ ªÀiÁr¸ÀĪÀAvÉ DgÉÆæ 25 ªÀÄvÀÄÛ 33 gÀªÀgÀ ªÀÄÆ®PÀ DgÉÆæ
35, ºÁUÀÆ ªÀÄwÛvÀgÀjUÉ ¸ÀÆa¹gÀÄvÁÛgÉ."
9. From the above narration, it is clear that even
according to the prosecution, the only role played by the
appellant is that at the instance of accused No.57, he and
other accused conveyed their decision of conspiracy through
accused No.25 and accused No.33 (the appellant herein) to
accused No.35 and others. There are no allegations
whatsoever that the appellant was either a party to the
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alleged conspiracy or an abettor in the commission of the
offences. It is also not the case of the prosecution that the
appellant was actually involved in the commission of the
offences. The only material relied on by the prosecution in
proof of the complicity of the appellant in the alleged
offences are the statements of CWS-4, 5, 6, 9, 12, 17, 19,
20, 21 and 22. The gist of the statements of these
witnesses is that three months earlier to the alleged
incident of riot, during the COVID time, there was a meeting
at Hasina Hall which was attended to by accused No.57
Sri. Sampath Raj and Sri. D.K. Shiva Kumar and during that
meeting, the ration kits were distributed. The further
statements of the witnesses read that in the said meeting,
the appellant herein being the writer of accused No.57 was
distributing ration kits. Other than that, there are no
allegations that the appellant was a party to the alleged
conspiracy between accused No.57, 58, 59 and 60. In the
said circumstances, accused No.57, 58 and 59 having been
already enlarged on bail by this Court, in my view, on the
ground of parity as well as on account of changed
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circumstances discussed above, the appellant is entitled for
release of bail.
10. It is also necessary to note that eventhough
charge sheet is laid alleging commission of offences under
section 3(2),(iii),(iv),(v),(va) of The Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, yet, there is
no dispute with regard to the fact that the appellant herein
is also a member of Scheduled Caste. As such, the charge
under section 3(2),(iii),(iv),(v),(va) of The Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
leading to life sentence cannot stand against the appellant.
With regard to the charge under section 395 IPC is
concerned, there are no materials to connect the appellant
to the alleged act of dacoity. On the other hand, the
appellant is sought to be sent up for trial on the specific
allegation that he being the follower of accused No.57 was
also present during the conspiracy that had taken place
three months earlier to the alleged incident. It is not the
case of the prosecution that the appellant was in any way
instrumental in setting fire to the house of respondent No.2
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causing destruction of properties. Having regard to the
nature of accusations levelled against the appellant, there
cannot be any apprehension of the appellant tampering with
the evidence.
In that view of the matter, the appeal deserves to be
allowed.
Accordingly, the appeal is allowed. The order dated
24.12.2020 passed by learned LXX Additional City Civil and
Sessions Judge, Bengaluru in Spl.C.C.No.744/2020 is set-
aside.
The application filed by the appellant herein/accused
No.33 under section 439 Cr.P.C. before the trial court as
allowed.
i) The appellant - Mr.Santhosh Kumar S is
ordered to be enlarged on bail on
furnishing bond in a sum of
Rs.5,00,000/- (Rupees Five Lakh only)
with two sureties for the likesum to the
satisfaction of the trial court.
ii) He shall regularly appear before the trial
court on every date of hearing without
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fail unless exempted by orders of the
Court.
iii) He shall not threaten or allure the
prosecution witnesses in whatsoever
manner.
iv) He shall not get himself involved in
similar offences.
v) He shall not leave the jurisdiction of the
Trial Court until conclusion of trial
without prior permission.
If any of these conditions are violated, liberty is
reserved to the prosecution to move for cancellation of bail
in accordance with law.
Sd/-
JUDGE
*mn/-
