Karnataka High Court
Sri Annappa Shetty vs State By Byndoor Police Station on 15 February, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.10255/2021
C/W.
CRIMINAL PETITION NO.50/2022
IN CRIMINAL PETITION NO.10255/2021:
BETWEEN:
SRI ANNAPPA SHETTY
AGED ABOUT 41 YEARS
S/O NARASIMHA SHETTY
R/O CAVERI NILAYA
KALTHODU VILLAGE, BYNDOOR TALUK
UDUPI DISTRICT-576 214. ... PETITIONER
(BY SRI K.PRASANNA SHETTY, ADVOCATE)
AND:
1. STATE BY
BYNDOOR POLICE STATION, UDUPI
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
2. ASHOK DEVADIGA
AGED ABOUT 25 YEARS
S/O GOVINDA DEVADIGA
MELPANKTHI, SHIROOR VILLAGE
BYNDOOR TALUK-576 214. ... RESPONDENTS
(BY SRI VINAYAKA V.S., HCGP FOR R1;
SRI B.S.PRASAD, ADVOCATE FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 27.11.2021 PASSED BY THE COURT OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT UDUPI,
SITTING AT KUNDAPURA IN CRL.MISC.NO.695/2021
(CR.NO.166/2021) FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 504, 506, 324, 307, 114 R/W. SECTION 34 OF IPC
AND CANCEL ORDER OF BAIL (DOCUMENTS NO.1) AND TO
DIRECT RESPONDENT NO.2 HEREIN TO SURRENDER BEFORE
THE TRIAL COURT WITH A DIRECTION TO THE TRIAL COURT TO
REMAND HIM FOR CUSTODY.
IN CRIMINAL PETITION NO.50/2022:
BETWEEN:
SRI ANNAPPA SHETTY
AGED ABOUT 41 YEARS
S/O NARASIMHA SHETTY
R/O CAVERI NILAYA
KALTHODU VILLAGE, BYNDOOR TALUK
UDUPI DISTRICT-576 214. ... PETITIONER
(BY SRI K.PRASANNA SHETTY, ADVOCATE)
AND:
1. STATE BY
BYNDOOR POLICE STATION, UDUPI
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
2. KIRAN POOJARY
AGED ABOUT 32 YEARS
S/O BABU POOJARY
R/AT MELPANKTHI, SHIROOR VILLAGE
BYNDOOR TALUK-576 214. ... RESPONDENTS
(BY SRI VINAYAKA V.S., HCGP FOR R1;
SRI B.S.PRASAD, ADVOCATE FOR R2)
3
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 27.11.2021 PASSED BY THE COURT OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT UDUPI,
SITTING AT KUNDAPURA IN CRL.MISC.NO.698/2021
(CR.NO.166/2021) FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 504, 506, 324, 307, 114 R/W. SECTION 34 OF IPC
AND CANCEL ORDER OF BAIL (DOCUMENT NO.1) AND TO
DIRECT RESPONDENT NO.2 HEREIN TO SURRENDER BEFORE
THE TRIAL COURT WITH A DIRECTION TO THE TRIAL COURT TO
REMAND HIM FOR CUSTODY.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.02.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
These two petitions are filed under Section 439(2) of
Cr.P.C, by the original complainant/petitioner herein praying to
set aside the order dated 27.11.2021 passed in
Crl.Misc.No.695/2021 and Crl.Misc.No.698/2021, respectively on
the file of Additional District & Sessions Judge at Udupi, sitting at
Kundapura for the offences punishable under Sections 504, 506,
324, 307, 114 read with Section 34 of IPC and cancel the orders
of bail.
2. Heard the learned counsel appearing for the
petitioner in both the petitions and the learned High Court
Government Pleader appearing for respondent No.1/State and
the learned counsel appearing for respondent No.2.
3. The factual matrix of the case of the prosecution is
that the petitioner is running a family Bar and Restaurant in the
name and style of 'Silver Arach'. One Ashweej Shetty is the
Manager of the Restaurant. On 20.10.2021, the accused
persons came to the Bar and Restaurant at around 9:00 p.m,
and insisted the Manager for money. Further they assaulted with
bottle, abused him in a filthy language and also threatened to
take his life. In this regard, a complaint was filed. The
complainant along with his friends gone to the police station for
enquiry. When they were returning after enquiry near Nikhil
Hotel, the Car of the complainant's friend stopped and they got
down from the car. On looking to this, he also stopped the Car.
At that time, his friends looking into the accused persons along
with 3 others proceeded and making conversation. At that time,
the accused and others suddenly started abusing them in a filthy
language and threatened to kill them. The accused were armed
with iron rod, long knife with an intention to kill the complainant
and his friends started assaulting. When the accused Kiran
Poojary used a long knife for assaulting, the friends of the
complainant, tried to avoid the assault, but the knife hit the back
of Ravi Shetty. The accused Ashok Devadiga assaulted with an
iron rod over one Prashanth Shetty. The accused Kiran Poojary
pulled Ravi Shetty to the ground and made an attempt to assault
him with a long knife. At that time, the complainant intervened
and avoided the assault. The two others, who were with the
accused, also assaulted Akshay Acharya and Prashanth Shetty
with an iron rod. On looking to the galata, the public came near
the spot and on looking at them, the accused ran away from the
spot. Hence, based on the complaint, a case has been
registered.
4. The learned counsel appearing for the petitioner
would submit that the Trial Court has granted bail in favour of
respondent No.2 in both the petitions without looking into the
nature and seriousness of the offences invoked against them.
The learned counsel would vehemently contend that they are the
habitual offenders and they were having several cases against
the respondents herein. In spite of it, the Trial Court exercised
the discretion. It is also contended that the respondents are anti
social elements. The learned counsel also would vehemently
contend that the Trial Court failed to appreciate the objection of
the prosecution that the bail application filed by the respondents
came to be rejected and even not surrendered before the police
or the Court and disrespected the order of rejection of the bail.
The Trial Court committed an error in giving the reasons that if
the bail is rejected, it is the duty of the Investigating Officer to
nab the accused and produced before the Court and merely
because the rejection of the bail petition cannot be a ground to
reject the bail petition and the very approach of the Trial Court is
erroneous.
5. Per contra, the learned High Court Government
Pleader appearing for respondent No.1/State in both the
petitions would vehemently contend that Crime No.166/2021
was registered in respect of the previous date and the injuries
were simple in nature and the Court taking into note of the
scope of Section 439 of Cr.P.C., exercised its discretion and the
petitioner has suppressed the facts before the Court and the
respondent was in the hospital on account of the injuries
sustained by the respondent in the counter case in Crime
No.166/2021 and assaulted with Talwar and regular bail was
granted by the Trial Court after rejection of the petition filed
under Section 438 of Cr.P.C. Hence, the same cannot be a
ground to reject the bail petition. The respondent was in the
hospital. Hence, he could not file the complaint immediately.
6. Having heard the respective counsel and on perusal
of the material available on record, no doubt, the Trial Court
exercised the discretion under Section 439 of Cr.P.C., granting
bail in favour of respondent No.2 herein in both the petitions and
the facts also disclose that there is a case and counter case in
Crime No.166/2021. The main contention of the learned counsel
for the petitioner is that there were several cases against the
respondents and the same has been culled out in paragraph
No.13 of the orders of the Trial Court. The Trial Court while
exercising the discretion taken note of the judgment of the Apex
Court in the case of Prabhakar Tewari v. State of U.P. and
another reported in 2020(11) SC 684, and also in Criminal
Appeal No.159/2012, and taken note of the injuries sustained
and the injured persons are discharged from the hospital after
the treatment and also considered the fact that the respondents
are in the custody from 21.10.2021 and the bail was granted in
the month of November. No doubt, there are several cases
against the respondents.
7. The learned counsel appearing for the respondent
No.2 in both the petitions brought to the notice of this Court that
at the instance of this petitioner two cases are registered. While
exercising the discretion, the Court has to take note of the
nature of injuries, nature of accusation and seriousness of
allegations. The injuries are simple in nature and also the injured
persons are out of danger. The Trial Court also taken note of the
fact that the Court has to appreciate the factual aspects of the
case in which the bail has to be granted. It is also observed that
the rejection of bail in other crime case cannot be a ground for
rejection of the bail petition. Mere pendency of other criminal
case is not a ground to reject the bail petition and the Trial Court
rightly exercised the discretion under Section 439 of Cr.P.C. in
granting bail in favour of respondent No.2 in both the petitions.
8. The very contention of the learned counsel for the
petitioner is that this petitioner is a habitual offender and there
are several cases against him cannot be a ground for
cancellation of bail. The Court while cancelling the bail invoking
Section 439(2) of Cr.P.C., not to pass the order mechanically
and the Court should be very slow in exercising the powers
under Section 439(2) of Cr.P.C., only if perverse and capricious
order is passed without considering the material on record, then
only the Court can exercise the powers under Section 439(2) of
Cr.P.C., or otherwise not to exercise the powers under Section
439(2) of Cr.P.C. Hence, I do not find any merit to exercise the
powers under Section 439(2) of Cr.P.C., in both the petitions.
9. In view of the discussions made above, I pass the
following:
ORDER
The petitions are dismissed.
Sd/-
JUDGE
cp*
