Karnataka High Court
Sunil Kumar vs State By Periyapatana Police ... on 4 February, 2022
Bench: H.P.Sandesh
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.4234/2021
BETWEEN:
SUNIL KUMAR
S/O S.T. ERAPAJJI
AGED ABOUT 27 YEARS
NARALAPURA VILLAGE
KASABA HOBLI
PERIYAPATANA TALUK
MYSURU DISTRICT - 571 107
... PETITIONER
(BY SRI HEMANTH KUMAR S.R., ADVOCATE)
AND:
1. STATE BY PERIYAPATANA POLICE STATION
MYSURU
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE - 560 001
2. MANJU
S/O RAJAPPA
AGED ABOUT 28 YEARS
R/AT HITTANAHALLI VILLAGE
RAVANDURU HOBLI
PERIYAPATNA TALUK
MYSURU DISTRICT - 571 108
3. RAJAPPA
S/O LATE VEERAPPA
AGED ABOUT 53 YEARS
-2-
R/AT HITTANAHALLI VILLAGE
RAVANDURU HOBLI
PERIYAPATNA TALUK
MYSURU DISTRICT - 571 108
4. SHIVAMMA
W/O RAJAPPA
AGED ABOUT 50 YEARS
R/AT HITTANAHALLI VILLAGE
RAVANDURU HOBLI
PERIYAPATNA TALUK
MYSURU DISTRICT - 571 108
... RESPONDENTS
(BY SRI KRISHNA KUMAR K.K., HCGP FOR RESPONDENT/STATE
R2, R4- SERVED AND UNREPRESENTED
V/O ORDER DTD: 16.09.2021 NOTICE TO R3
IS HELD SUFFICIENT)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) R/W 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER
PASSED BY THE V ADDITIONAL SESSIONS JUDGE, MYSURU IN
CRL.MISC.NO.464/2021 (SEC.438 OF CR.P.C.) DATED
23.03.2021 CRL.MISC.NO.576/2021 (SEC.438 OF CR.P.C.)
DATED 05.04.2021 AND CRL.MISC.NO.706/2021 (SEC 439 OF
CR.P.C.) DATED 17.04.2021 AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed under Section 439(2) of Cr.P.C.
praying to cancel the orders dated 23.03.2021, 05.04.2021 and
17.04.2021 passed in Crl.Misc.Nos.464/2021, 576/2021 and
706/2021, respectively, by the V Additional District and Sessions
Judge, Mysuru, for the offences punishable under Sections 498-
A, 304-B r/w 34 of IPC and under Sections 3 and 4 of the Dowry
Prohibition Act.
2. Heard learned counsel for the petitioner and also
learned HCGP appearing for the respondent - State. Respondent
Nos.2 and 4 are served and unrepresented. Notice in respect
respondent No.3 is held sufficient.
3. The factual matrix of the case of the prosecution is
that the complainant is the younger brother of deceased -
Sunitha, who had lodged a complaint stating that the marriage
of the deceased took place with respondent No2./accused No.1 -
Manju on 16.02.2020 and at the time of the marriage, they had
given gold ornaments and cash of Rs.3,50,000/- and the
expenses of the marriage were also borne by the complainant's
family. Two months after the marriage, respondent No.2 /
accused No.1 - Manju picked up quarrel with the deceased
demanding six lakh rupees for construction of his house since
the complainant's family had already supported the family of the
Shruthi, elder sister of the deceased during construction of their
house and in this regard Panchayath was also held. The mother
of the complainant sent the deceased back to the house of
accused promising that the house of the accused would be
completed and tiles would be laid. On account of failure of
crops, complainant's family could not assist the accused
financially. Hence, accused persons started subjecting the
deceased to cruelty and even accused No.1 assaulted the
deceased asking her to get her share in her father's property
before the marriage of complainant takes place. On 14.02.2021
at about 11 A.M., the complainant received a phone call from his
father that Sunitha was admitted in Mysuru Hospital with burn
injuries. By the time complainant reached Ramanagar from
Bengaluru his father informed him over phone that Sunitha is no
more. When complainant came to Periyapatna from Mysuru his
villagers told him that Sunitha's death was accidental and
accordingly, a writing was given at Periyapatna Police Station
that death of Sunitha was accidental. After funeral of the
deceased was over, the complainant found that the deceased
voice messages had come to mobile No.9380012311 belonging
to Manikanta, a next door neighbour of the complainant from
mobile No.7899287800, belonging to accused No.1 / husband of
the deceased and the said voice messages of the deceased read
that, "If anything goes wrong to me, for that accused Manju,
accused No.3 Shivamma and applicant i.e., Rajappa / accused
No.2 would be responsible." When he came to know about these
messages, which revealed the involvement of all the accused
persons, he lodged a complaint and the case came to be
registered as Crime No.41/2021. The police investigated the
matter and filed charge sheet against the accused persons.
4. Accused Nos.2 and 3 have moved petitions in
Crl.Misc.Nos.464/2021 and 576/2021, respectively, before the
trial Court invoking Section 438 of Cr.P.C. for anticipatory bail
and accused No.1 moved petition in Crl.Misc.No.706/2021 for
regular bail under Section 439 of Cr.P.C. The trial Court granted
bail in all the cases. While granting anticipatory bail in
Crl.Misc.No.464/2021, the trial Court vide order dated
23.03.2021 came to the conclusion that none of the offences
alleged against the applicant / accused No.2 is exclusively
punishable with death or life imprisonment. It is only after the
neighbour of the complainant revealing the fact that he has
received voice messages of deceased Sunitha, the complainant
has lodged complaint with the Periyapatna police. Whether the
said messages were really sent by the deceased Sunitha and
whether the mobile phone belongs to Sunitha can be ascertained
only at the time of trial. The incident took place on 14.02.2021
and the present complaint came to be lodged on 16.02.2021 at
10 p.m. and hence, apprehension of the prosecution that
applicant / accused No.2 will abscond and tamper with the
prosecution witnesses could very well be safeguarded by
imposing stringent conditions. Similar order is passed in
Crl.Misc.No.576/2021 vide order dated 05.04.2021 while
granting bail to accused No.3. The trial Court while considering
the bail petition in Crl.Mis.No.706/2021 filed by accused No.1,
who is husband of the deceased, vide order dated 17.04.2021
held that the applicant / accused No.1 is in judicial custody since
18.02.2021 and apprehension of the prosecution that the
applicant / accused No.1 will abscond and tamper with the
prosecution witnesses could very well be safeguarded by
imposing stringent conditions. If at all the deceased was
subjected to mental and physical cruelty by the applicant and
non-applicants in connection with dowry, the said fact would
have been disclosed to the complainant and to his parents.
Hence, enlarged the accused No.1 on bail by exercising
discretion under Section 439 of Cr.P.C. Hence, present petition
is filed before this Court by the complainant.
5. The main contention of the petitioner's counsel
before this Court is that the orders passed by the trial Court
exercising discretion under Sections 438 and 439 of Cr.P.C. in
Crl.Misc.Nos.464/2021, 576/2021 and 706/2021 is bad in law.
Perverse orders are passed by the trial Court while exercising
discretion under Section 438 as well as under Section 439 of
Cr.P.C. FIR discloses that there is prima-facie case against the
accused since deceased-Sunitha before her death had sent her
voice messages from the mobile phone of her husband i.e.,
accused No.1 to one neighbour of the complainant and
observation of the trial Court in this regard was that 'whether
the said messages were really sent by the deceased Sunitha and
whether that mobile phone belongs to Sunitha can be
ascertained only at the time of trial'. Such being the facts of the
case, the very observation that whether the mobile phone
belongs to Sunitha has to be ascertained during trial, is an
erroneous order. Learned counsel would also submit that from
the voice messages of Sunitha-deceased, it is very much clear
that the Sunitha has stated that the accused persons may do
anything to her life and if anything happens to her life, the
accused persons are liable and not to leave them and board
them to police jeep. This fact has also not been considered by
the trial Court.
6. Even though there is prima-facie case against
respondent Nos.2 to 4 regarding their involvement in
commission of the offence regarding ill-treatment and
harassment made to the deceased insisting her to bring
additional dowry amount from her parental house and there was
promise to give the amount and also panchayath was held to
that effect, the trial Court failed to take notice of the ingredients
of the complaint and offences punishable under Sections 498-A,
304-B r/w 34 of IPC and under Sections 3 and 4 of the Dowry
Prohibition Act. Even though detailed objection statement is filed
by the Public Prosecutor, without considering the same, the very
orders passed by the trial Court granting bail to the accused, is
perverse and capricious. Hence, the orders require interference
by this Court.
7. Per contra, learned counsel for the respondent -
State supports the contentions of the learned counsel for the
petitioner / complainant and places copy of the objection
statement filed by the prosecution before the trial Court as
directed by this Court and on perusal of statement of objections
at Para No.2, it is seen that specific averments are made in the
objection statement that before the incident took place,
deceased - Sunitha through the mobile phone of her husband
had sent voice messages to the neighbour of the complainant
that the respondent Nos.2 to 4 herein subjected her to cruelty
and also sent messages stating that if anything happens to her
life, all the accused are responsible. Inspite of detailed
statement of objections, the trial Court granted anticipatory bail
and also regular bail in favour of accused Nos.2 to 4 within a
span of two months and nothing has been referred to in the
orders with regard to filing of the charge sheet or considering
any charge sheet material. Hence, the learned HCGP also
submits that the orders passed by the trial Court is perverse and
capricious.
- 10 -
8. Pursuant to filing of this petition, this Court has
issued notice to respondent Nos.2 to 4 / accused Nos.1 to 3.
Inspite of service of notice to respondent Nos.2 and 4, they did
not chose to appear before this Court or engage a counsel. This
Court vide order dated 16.09.2021 held the notice as sufficient
in respect of respondent No.3.
9. Having heard the petitioner's counsel and HCGP
appearing for the respondent - State and also taking note of the
orders passed by the trial Court, a specific allegation is made in
the complaint that before the death of victim, she had sent voice
messages to the neighbour of the complainant that too from the
mobile phone belonging to her husband stating that if anything
happens to her life, all the accused are responsible, it is
pertinent to note that the trial Court while exercising powers
under Section 438 Cr.P.C. in both cases in Crl.Mis.Nos.464/2021
and 576/2021 vide orders dated 23.03.2021 and 05.04.2021,
made a callous observation that whether the said messages
were really sent by the deceased to the neighbour of the
complainant and whether the mobile phone belongs to Sunitha,
can be ascertained only at the time of trial. Even though the
- 11 -
fact that the said mobile phone belongs to the husband of the
deceased i.e., accused No.1, is clearly stated in the objection
statement of learned Public Prosecutor in para No.2 before the
trial Court and also in the complaint it is specifically stated that
the said phone belongs to accused No.1, without looking into the
records, the trial Court has made observation, which is incorrect.
It is the very specific case of the complainant that the messages
were sent from the mobile phone of the husband of the deceased
i.e., accused No.1 and not deceased-Sunitha. Even though
heinous offence under Sections 498-A, 304-B r/w 34 of IPC and
Sections 3 and 4 of the Dowry Prohibition Act were invoked, the
trial Court has exercised discretion under Section 438 Cr.P.C. by
granting bail. It is also important to note that the death of the
victim is on account of burn injuries. In the complaint there is
specific averments that the messages were sent on 14.02.2021
i.e., on the day when the incident took place and that the same
came to the knowledge of the complainant later and before
completion of investigation, the trial Court has invoked powers
under Section 438 Cr.P.C. and granted bail to accused in two
cases and without even waiting for the investigation period,
came to the conclusion that the said messages' truthfulness
- 12 -
could be considered during trial and this conclusion is arrived
even before the investigation.
10. The trial Court in Crl.Misc.No.706/2021 while
granting regular bail by invoking Section 439 Cr.P.C. has made
the very same observation, which is erroneous. When such
being the facts, the trial Court in a capricious manner came to
the conclusion that the present complaint came to be lodged on
16.02.2021 and also observation has been made that the
accused No.1 is in judicial custody since 18.02.2021. Within a
span of two months of filing of the complaint and when the case
was under investigation, the very approach of the trial Court in
passing the order on 17.04.2021 granting bail to accused No.1,
who is alleged of committing heinous offence of taking away the
life of a lady in a matrimonial home and that to after coming to
know about by the voice messages being sent by the victim
before her death that too through the mobile of accused No.1
and the same ought to have been investigated but, the trial
Court has lost sight of the heinous offence, that the lady, who
was married in the year 2020 has lost her life within one year of
her marriage that too by burn injuries and the cruelty meted out
- 13 -
to her in the matrimonial home and cause of death also due to
burn injures, hence, the orders passed by the trial Court is
nothing but a perverse and capricious orders.
11. This Court also would like to refer to the judgment of
the Apex Court in the case of RAMESH BHAVAN RATHOD VS
VISHANBHAI HIRABHAI MAKWANA (KOLI) AND ANOTHER
reported in (2021) 6 SCC 230, wherein it is held that the Court
has to look into the seriousness and gravity of offences
committed and severity of punishment in the event of conviction,
failure of High Court to consider while granting bail and in the
absence of reasons also the order of granting bail in the present
case held perverse and set aside the order of granting bail. It is
further observed that necessity of recording reasons for grant or
denial of bail though the Court considering bail application does
not need to launch into detailed evaluation of facts on merits
since criminal trial is still to take place, yet court granting bail
cannot be oblivious of its duty to apply judicial mind and to
record reasons, brief as they may be for the purpose of deciding
whether or not to grant bail and further observed that
mandatory duty of the court to record reasons when granting
- 14 -
bail and grant of bail is a matter involving exercise of judicial
discretion and judicial discretion in granting or refusing bail as in
case of any other discretion which is vested in court as judicial
institution, is not unstructured and duty to record reasons is
significant safeguard which ensures that discretion which is
entrusted to court is exercised in judicious manner and recording
of reasons in judicial order ensures that thought process
underlying order is subject to scrutiny and that it meets
objective standards of reason and justice thus, bail order which
does not contain reasons for prima facie concluding that bail
should be granted is liable to be set aside for non-application of
mind.
12. In the case on hand also, I have already pointed out
that the reasons assigned by the trial Court in exercising
discretion under Section 438 of Cr.P.C. as well as under Section
439 of Cr.P.C., is a factual error committed that to when the
complainant has specifically stated that the deceased sent voice
messages from the mobile phone of her husband to the
neighbour of the complainant. An observation is made that
whether the said messages were really sent by the deceased-
- 15 -
Sunitha and whether that mobile phone belongs to Sunitha can
be ascertained only at the time of the trial. It is not the case of
the prosecution that the said mobile belongs to deceased -
Sunitha and the same belongs to her husband and the said
message also sent through the mobile of her husband to the
neighbour of the complainant. But, while exercising powers
under Sections 438 and 439 Cr.P.C., the trial Court assigned the
reason that whether the said messages were really sent by the
deceased-Sunitha and whether that mobile phone belongs to
Sunitha can be ascertained only at the time of the trial and even
there was no investigation at that time and allegation is very
clear that when six lakh rupees was demanded for construction
of the house, panchayath was held and promised to pay the
amount to complete the construction, trial Court ought not to
have exercised discretion under Sections 438 as well as 439 of
Cr.P.C prior to conclusion of the investigation itself, when a
heinous offence of taking away the life of the victim, who was
married just one year prior to the incident, wherein the victim
herself had sent messages from the mobile phone of her
husband - accused No.1 to the neighbour of the complainant
before her death, which amounts to a dying declaration. The
- 16 -
trial Court ought to have waited till the completion of the
investigation and if no material, would have exercised discretion.
13. The trial Court ought not to have exercised discretion
and passed a perverse and capricious orders. Since the orders
are perverse and capricious, it requires interference by this
Court.
14. It is appropriate to send the copy of this order to the
learned trial Judge, who exercised discretionary powers under
Sections 438 and 439 of Cr.P.C. in a heinous offence of taking
away the life of the victim, who was married one year prior to
the incident and prior to her death, she had sent voice messages
to the neighbour of the complainant. That being the case, the
trial Court lost sight of the judicious thought process entrusted
to the Presiding Officer as observed by the Apex Court in the
judgment referred supra and failed to exercise judicial discretion
and failed to take note of complaint allegations particularly
dowry harassment and about the panchayath held before her
death regarding additional dowry harassment, hence, it is
appropriate to direct the Registry to post the Judicial Officer for
- 17 -
training in the Judicial Academy to make endeavour to learn
judicial discretion, in the interest of institution and to protect the
interest of seekers of justice, while granting the bail.
15. In view of the observations made above, I pass the
following:
ORDER
(i) The petition is allowed. Consequently, the
orders dated 23.03.2021, 05.04.2021 and
17.04.2021 passed in Crl.Misc.Nos.464/2021,
576/2021 and 706/2021, respectively, by the
trial Court, are hereby set aside and bail
granted is cancelled.
(ii) Trial Court is directed to take the respondent
Nos.2 to 4 / accused Nos.1 to 3 to custody
forthwith under Section 439(2) of Cr.P.C. since
this Court cancelled the bail.
(iii) Registry is directed to seek appropriate orders
from the Hon'ble Chief Justice to post the
concerned Judicial Officer to the Judicial
- 18 -
Academy for training with regard to applying
judicious thought process while exercising
judicial discretion before granting bail in a
heinous offences as observed by the Apex
Court in the judgment referred to supra.
(iv) The Registry is directed to send a copy of this
order to the Presiding Officer to make
endeavour to learn exercising of judicial
discretion.
Sd/-
JUDGE
SV
