Miss. Anuradha Baliga vs Mangalapady Naresh Shenoy
2022 Latest Caselaw 1494 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF FEBRUARY, 2022

                          BEFORE

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

              CRIMINAL PETITION NO.2519/2021


BETWEEN:

MISS. ANURADHA BALIGA
D/O RAMACHANDRA BALIKA
AGED ABOUT 45 YEARS
"LAKSHMI KUNJ" NEAR TVS KALA KUNJ
KODIAL BAIL, MANGALURU-575003
DAKSHINA KANNADA DISTRICT.
                                               ... PETITIONER

             (BY SRI LEELADHAR H.P., ADVOCATE)

AND:

1.     MANGALAPADY NARESH SHENOY
       S/O LATE NAMDEV SHENOY
       AGED 44 YEARS
       "LAKSHMINARAYANA"
       DHANVANTRI SADANA
       13-10-1279/2
       DANVANTHRI NAGAR, V.T.ROAD
       MANGALURU-575 001

2.     STATE OF KARNATKAA
       BY BARKE POLICE STATION
       MANGALURU-575 003
       REP. BY ITS POLICE INSPECTOR
                              2



3.    THE POLICE COMMISSIONER
      MANGALURU CITY
      MANGALURU-575001
      DAKSHINA KANNADA
                                           ... RESPONDENTS

     (BY SRI ASHOKA HARANAHALLI, SENIOR COUNSEL FOR
          SRI SUYOG HERELE E., ADVOCATE FOR R1;
        SRI R.D.RENUKARADHYA, HCGP FOR R2 AND R3)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO CANCELLATION OF BAIL
GRANTED TO ACCUSED NO.1 SRI M.NARESH SHENOY, FOR
VIOLATING THE CONDITIONS IMPOSED BY THIS HON'BLE
COURT    IN   CRIMINAL  PETITION NO.6189/2016 DATED
15.09.2016 AND THE BAIL BOND OF SRI M.NARESH SHENOY
MAY BE CANCELLED AND HE MAY BE ORDERED TO BE TAKEN
INTO CUSTODY AND KEPT IN DETENTION TILL CONCLUSION OF
THE TRIAL IN THE ABOVE MATTER AND ETC.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 19.01.2022 THROUGH VIDEO
CONFERENCING THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:


                        ORDER

This petition is filed under Section 439(2) of Cr.P.C

praying this Court to cancel the bail granted to accused

No.1 for violating the conditions imposed by this Court in

Crl.P.No.6189/2016 dated 15.09.2016 and order to take the

accused No.1 into custody and keep in detention till the

conclusion of the trial.

2. The main contention of the learned counsel for

the petitioner before this Court is that respondent No.1 was

arraigned as accused in Cr.No.35/2016 for the offence

punishable under Section 302 of IPC on account of murder

of one Vinayaka Baliga. This Court granted bail in favour of

respondent No.1 with conditions vide order dated

15.09.2016 and respondent No.1 has violated condition

Nos.(g) and (i) of the said order passed by this Court,

which read thus:

"(g) Petitioner shall appear before the concerned court on all the future dates of hearing except on the dates on which he is exempted from appearing for valid reasons.

(i) Petitioner shall keep himself away from all the activities and affairs of Shri Venkataramana Temple, Car Street, Mangaluru and Kashimutt, Mangaluru, and from the affairs and activities of all the committees attached to the said temple till conclusion of the trial of the case."

3. The main contention of the learned counsel for

the petitioner before this Court is that the respondent No.1

has actively participated in all the functions of Shri.

Venkataramana Temple, Car Street, Mangaluru and

Kashimutt, Mangaluru and in support of his arguments he

has produced photographs to show that the first respondent

had participated in the activities of the said Shri

Venkataramana temple even though there is a direction

while granting bail that he should keep himself away from

all the activities and affairs of the said temple. The first

respondent has taken active part in the Car Festival and

connected programmes organized by Shri Venkataramana

temple held during the month of February 2017. Inspite of

the complaints made by the general public as well as the

applicant, no action has been initiated against the first

respondent. There are several meeting and temple

activities and functions being held at the said temple.

Inspite of there being a condition imposed by the Court, by

violating the said condition, the first respondent is taking

active part by his personal presence and causing

commotion and embarrassment to the trustees and

devotees of the temple and the persons belonging to Goud

Saraswath community and there is every likelihood or

chance of tampering of vital documents of the temple.

4. It is also further contended that there was

Chathurmasa programme of Kashimutt for the year 2020

from the month of July to October 2020, in which one of the

conspirators involved in the murder of Vasanth Baliga,

Srimad Samyamendra Thirtha Swamiji has taken part in the

said programme continuously for a period of four months at

Shri Venkataramana temple, Kashimutt, Konchadi,

Mangaluru and number of programmes, activities and

processions took place in the said temple. The first

respondent took active and leading role in all the

programmes by associating with Srimad Samyamendra

Thirtha Swamiji and he has openly sat in the tableau in

which the said Srimad Samyamendra Thirtha Swamiji was

carried. The accused No.1 is posing threat to the applicant

and her family members. It is necessary to cancel the bail

since, the first respondent has violated the terms and

conditions of the order. The petitioner complained to the

police but respondent No.1 used all his political power since

he used the present MLA to shield him.

5. This petition is resisted by filing detail statement

of objections by denying the allegations made in the

petition and contended that similar application was filed

before the Sessions Judge and also before this Court in

Crl.P.No.4415/2018 and the same was dismissed. It is

contended that he was not involved in the management and

affairs of the temple and neither the first respondent nor

the family members have participated in the said Shri

Venkataraman temple functions. However, it is submitted

that they are devotees of the said temple and used to offer

their prayer and seva in the temple. Offering of seva or

their devotion cannot be construed as involvement in the

management or the affairs of the temple. The petitioner

also indulged in seeking for further investigation in the

matter by invoking Section 173(8) of and causing trouble to

the first respondent. The trial is not yet commenced and

even the first respondent is ready to face the trial as a false

case has been registered against him. It is contended that

at the cost of repetition, the first respondent and his family

members are the devotes of the said temple and used to

offer their prayer and seva in the temple. Offering of seva

or their devotion cannot be construed as involvement in the

management or the affairs of the temple and hence, prayed

to dismiss the petition.

6. The learned counsel for the petitioner would

vehemently contend that when the conditions particularly,

condition Nos.(g) and (i) are violated and to evidence the

said fact, the photographs are produced before the Court. It

is clear that the first respondent has participated in the

affairs of the temple and even he was on the stage and

inaugurated the function and the first respondent has not

denied the said photographs. When such being the case, it

is a fit case to invoke Section 439(2) of Cr.P.C. The counsel

in support of his arguments produced photographs in

document Nos.1 to 5. Apart from the photographs

produced along with the petition and referring to those

photographs, the counsel brought to the notice of this Court

to the very involvement of the first respondent in the

activities of the temple and apart from that he also relied

upon the judgment of the Apex Court reported in (2005) 8

SCC 21 in the case of STATE OF U.P. THROUGH CBI vs

AMARMANI TRIPATHI regarding cancellation of bail and

relied on paragraphs 24, 31, 32 and 34, wherein the Apex

Court discussed with regard to exercise of powers under

Section 439(2) of Cr.P.C and cancelled the bail granted by

the High Court. The counsel in his additional facts also

relied upon the photographs and relevant paragraphs

extracted in detail.

"24. The evidence collected above discloses that there were repeated attempts by the accused Amarmani to interfere and sidetrack the investigation and threaten the witnesses to come out with a story that would deflect the suspicion from him and his wife to Anuj Mishra or others. It is also not in dispute that Amarmani was on bail in a kidnapping case, when he indulged in these activities in May 2003. These materials were placed by the prosecution before the High Court to establish a reasonable apprehension of tampering. The learned Single Judge has, however, completely ignored these materials relating to tampering with evidence/witnesses. This necessitates interference with the order of the High Court.

31. In the present case, we find that the High Court has granted bail being of the opinion that the extra-judicial confession given by Rohit Chaturvedi, one of the co- accused may not stand the test of scrutiny by a judicial mind but that by itself was not sufficient to grant the bail. There is voluminous evidence collected by CBI to show the involvement of Amarmani Tripathi, and his effort to interfere with the investigation of the case before the grant of bail and also after the grant of bail. He tried to change the course of investigation by creating false evidence of the marriage of Madhumita with Anuj Mishra with the help of Yagya Narain Dixit, a police officer, the 6th accused who died in an accident during the course of investigation. There are written complaints with the investigating agency showing that after his release on bail Amarmani Tripathi tried to threaten as well as win over Nidhi Shukla, sister of the deceased and her mother by offering bribe. In our opinion, the High Court gravely erred in granting bail to Amarmani Tripathi in such circumstances. The High Court practically failed to consider/take into consideration the voluminous evidence which had been collected by the investigating agency and

have been referred to by them in their statement of objections to the application for grant of bail.

32. It is true that the position of Madhumani is somewhat different from the case of her husband. While her husband is a politician and ex-Minister, she is no doubt a housewife. While her husband has several criminal cases against him, she has no such record. While there is material to show attempts by her husband to tamper with the evidence and threaten witnesses, there is nothing to show that she made any attempt to tamper with the evidence. But there is material to show that she had absconded for several months and surrendered only when bail was refused to her husband on the ground that she was absconding. Further, when the matter is considered in its entirety, with reference to the murder of Madhumita and the propensity of the husband and wife to pressurise and persuade others to act according to their wishes, there is reasonable ground for apprehension that if her husband alone is taken into custody; leaving her to remain outside, she may take over the task of tampering with the evidence and manipulating/threatening witnesses. Therefore, interference is called for even in regard to the bail granted to Madhumani.

34. For the reasons stated above, the orders dated 29-4- 2004 and 8-7-2004 passed by the High Court are set aside. The bail bonds of the respondents in each of these cases are cancelled, the respondents are directed to surrender forthwith and in case they fail to do so, the State should take effective steps to take the respondents in custody."

7. Per contra, learned counsel for the first

respondent has contended that this petition is filed by

suppressing the facts that earlier, an attempt was made

before this Court for cancellation of bail and also before the

Trial Court and the same was rejected. This petitioner has

participated as devotee and not involved in any affairs of

the temple. The counsel would also submit that application

is pending before the Special Court and the first respondent

has not participated in the activities of the temple and he

visited the temple only as a devotee and not collected any

amount and in order to substantiate the allegation that any

amount was collected, no material is placed before this

Court and he has not violated any of the conditions imposed

in the order passed by this Court and except the

photographs, nothing is placed on record. The counsel in

support of his argument has relied upon the judgment of

the Apex Court in the case of DOLAT RAM AND OTHERS

vs STATE OF HARYANA reported in (1995) 1 SCC 349

wherein the Apex Court held that cancellation of bail

already granted must be considered and dealt with on

different basis not on the basis of the granting of bail. The

counsel also relied upon the judgment reported in 2000

SCC 1508 in the case of SUBHENDU MISHRA vs

SUBRAT KUMAR MISHRA AND ANOTHER wherein also

the Apex Court held that the High Court should not cancel

the bail in a mechanical manner. The counsel also relied

upon the judgment reported in (2004) 11 SCC 165 in the

case of SAMARENDRA NATH BHATTACHARJEE vs

STATE OF W.B. AND ANOTHER wherein also the Apex

Court regarding cancellation of bail is concerned held that

the High Court not to decide as if in appeal. The counsel

also relied upon the judgment reported in (2018) 16 SCC

511 in the case of X vs STATE OF TELANGANA AND

ANOTHER wherein regarding cancellation of bail has

summarized the principles and held that bail once granted

should not be cancelled unless a cogent case based on

supervening events has been made out.

8. The counsel appearing for the State also in his

argument would contend that there is no any violation as

contended and secured the report and the said report

discloses that there is no such violation and letters are also

received from Shri Venkataramana temple stating that the

first respondent has not participated in any such activities

of the temple and he is also not the member of any

committee and also separate letter is issued by the

President of Kashimutt stating that the first respondent has

not participated in any religious activities.

9. In reply to the arguments of the counsel for the

first respondent, the counsel for the petitioner would submit

that the first respondent was present in the dais and

inaugurated the function and also participated along with

Swamiji in the religious function and the same is not done

as a devotee and participated in the religious activities and

the photographs were also not denied by the first

respondent and the first respondent was assisting the

speakers and he also participated in the sahabojana and all

these photographs are evident and the reply given by the

State is also far from the truth and they are only relying

upon the letters issued by the temple and the mutt and not

investigated independently hence, it is a fit case to exercise

the powers under Section 439(2) of Cr.P.C.

10. Having heard the respective counsel for the

parties and also the grounds urged in the petition, the

points that arise for consideration are:

(1) Whether it is a fit case to exercise

powers under Section 439(2) of

Cr.P.C?

(2) What order?

Point No.1:

11. Having heard the respective counsel and

considering the material on record, it is clear that the first

respondent has arraigned as accused No.1 in a murder case

facing the charges under Section 302 of IPC. The first

respondent appeared before the Court for anticipatory bail

and the same was rejected. It is also not disputed that this

Court granted bail in favour of the first respondent in

Crl.P.No.6189/2016. Having read the operative portion

particularly, the condition No.(g) wherein the specific

condition imposed was that the petitioner shall appear

before the concerned court on all the future dates of

hearing except on the dates on which he is exempted from

appearing for valid reasons. Though the learned counsel

for the petitioner vehemently contend that there is a

violation of this condition, no material is placed before the

Court to show that whether he had appeared before the

Trial Court or if any exemption application filed by him was

allowed or rejected. Under such circumstances, the

contention of the learned counsel for the petitioner that

there is a violation of condition No.(g) cannot be accepted.

12. Now, the other condition i.e., condition No.(i)

remains for consideration of this Court wherein this Court

while imposing condition passed the specific order that the

petitioner shall keep himself away from all the activities and

affairs of Shri Venkataramana temple, Car Street,

Mangaluru and Kashimutt, Mangaluru and from the affairs

and activities of all the committees attached to the said

temple till conclusion of the trail of the case. Having read

the said condition, it is very clear that the first respondent

should keep himself away from all the activities and affairs

of the temple and also the activities of the committees

attached to the said temple till the conclusion of the trial of

the case. The said order is modified that there is no

prohibition on him from offering prayer as a devotee in the

temple and mutt. It is further clarified that he is only

conditioned from keeping away from the activities and

affairs of the committees attached to the temple. Hence, it

is clear that no prohibition from offering prayer as a

devotee but conditioned to keep him away from the

activities and affairs of the committees attached to the

temple. When such specific condition is imposed, the

photographs produced before the Court is clear that the

first respondent had participated in the affairs of the temple

and it is rightly pointed out by the learned counsel for the

petitioner that the photographs have not been denied by

the first respondent and apart from that in the statement of

objections filed by the first respondent admitted the

participation in the activities of the temple but contended

that he has not involved in the management and affairs of

the temple. In paragraph 7 it is contended that however,

they are all devotees of the said temple and used to offer

their prayer and seva in the temple. Offering of seva or

devotion cannot be construed as involvement in the affairs

of the temple. In paragraph 17 also it is contended that he

has not involved in the management and administrative

affairs of the temple or the mutt. It is further contended

that at the cost of repetition, the first respondent and his

family members are the devotees of the said temple and

used to offer their prayer and seva in the temple. Offering

of seva or their devotion cannot be construed as

involvement in the management or the affairs of the

temple. The photographs is evident that he has not only

offered pooja or seva in the temple but also participated in

the function organized by the temple and he is in the dais

and inaugurated the said function and the said photographs

have not been denied by the first respondent. I have

already pointed out that the order of this Court is very clear

that he shall keep himself away from all the activities of the

temple which does not mean that it is only for the affairs of

the committees attached to the said temple but he should

keep himself away from all the activities and affairs of the

temple and hence, it is clear that he had participated in the

activities and affairs of the temple and he was not only

restrained from participating from the affairs of the

activities of the committees attached to the said temple but

it is specific that till the conclusion of the trial of the case,

he should keep himself away from the activities of the

temple and I have already pointed out that the same has

not been denied and hence, it is clear that he had

participated in the activities of the temple. This Court

relaxed conditions for only to offer prayer as a devotee and

his activities are only for offering prayer and not to

participate in all the activities of the temple and to

inaugurate the function. The participation in the dais and

inaugurating the function in the temple doesn't mean that

he is only offering the prayer as a devotee and it is clear

that the same is participation of activities of the temple.

The respondent No.1 taking the advantage of the

modification of condition, participated in all the activities of

the temple. The State only relied upon the letters of the

temple and not independently enquired and submitted fair

report before the Court.

13. The counsel appearing for the first respondent

brought to notice of this Court that trial has not yet

commenced and not committed any violation of the order

passed by this Court and this Court observed that the first

respondent has participated in the activities of the temple

even though there is a condition imposed by this Court to

keep himself away from all the activities of the temple till

disposal of the case. When such being the case and when

the trial is not yet commenced, it is appropriate for the

present that not to invoke Section 439 (2) of Cr.P.C for

cancellation of bail and in view of the principles laid down in

the judgments referred supra that exercising the powers

under Section 439(2) of Cr.P.C. both are distinct and only in

the exceptional cases, the Court can exercise the powers

under Section 439(2) of Cr.P.C and also an attempt was

made earlier for cancellation of bail. However, the

photographs now produced are evident that he has not only

participated in the activities of the temple and even he was

allowed to be there in the dais and inaugurate the function

and helping the speakers as contended by the petitioner's

counsel and hence, instead of cancelling the bail for the

present, it is warned that the first respondent should not

participate in the activities of the temple taking the

advantage of relaxation, as directed, he only permitted to

offer prayer as devotee as relaxed in Crl.P.No.6917/2017 or

otherwise this Court is going to invoke Section 439(2) of

Cr.P.C in future if the activities of the first respondent is

against the order of the Court passed in

Crl.P.Nos.6189/2016 and 6917/2017.

Point No.2:

14. In view of the discussions made above, I pass

the following:

ORDER

The petition filed under Section 439(2) of

Cr.P.C. is dismissed for the present.

If the first respondent fails to keep away

from the activities and affairs of Shri

Venkataraman temple, Car Street, Mangaluru

and Kashimutt, Mangaluru, as prohibited in the

earlier orders, this Court would invoke the

jurisdiction under Section 439(2) of Cr.P.C to

cancel the bail in future.

Sd/-

JUDGE

SN