Shri Ram Kunchur vs Shri Shamanth B H
2022 Latest Caselaw 2989 Kant

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                            BEFORE

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

             CRIMINAL PETITION NO.2765/2021

BETWEEN:

1.     SHRI RAM KUNCHUR
       S/O NARASHINHA KUNCHUR
       AGED ABOUT 36 YEARS,

2.     SMT. SHREYASWINI K.R.
       W/O SHRI RAM KUNCHUR
       AGED ABOUT 34 YEARS,

3.     SMT. JAYALAKSHMI
       W/O LATE RAJARAM K V
       AGED ABOUT 61 YEARS,

       ALL ARE RESIDING AT
       NO.168, 1ST MAIN ROAD,
       4TH CROSS, RAMANJINEYA NAGAR
       CHIKKALLASANDRA
       BENGALURU-560 061.                 ... PETITIONERS

     [BY SRI NEGLUR ARAVIND, ADVOCATE (THROUGH VC)]

AND:

1.     SHRI. SHAMANTH B.H.
       S/O HEMANTH KUMAR
       AGED ABOUT 32 YEARS,
       RESIDING AT NO.87,
       1ST FLOOR, 2ND 'A' CROSS,
                                 2



     NGEF LAYOUT, MALLATHAHLLI,
     BENGALURU-560 056.

2.   THE STATE REPRESENTED BY
     SUBRAMANYAPURA POLICE STATION
     REPRESENTED BY STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA
     BENGALURU - 560 001.              ... RESPONDENTS

            [BY SRI VINAYAKA V.S., HCGP FOR R2;
            R1 - IS SERVED BUT UNREPRESENTED]

      THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
16.03.2021 PASSED BY THE COURT OF LXXI ADDITIONAL CITY
CIVIL   AND    SESSIONS    JUDGE     AT  BENGALURU    IN
CRL.MISC.P.NO.2094/2021 CONSEQUENTLY, DISMISS THE
CRL.MISC.P.2094/2021 FILED BY THE 1ST RESPONDENT HEREIN
ON THE FILE OF THE LXXI CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

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

aside the order dated 16.03.2021 passed by the Court of LXXI

Additional City Civil and Sessions Judge, Bengaluru City in

Crl.Misc.No.2094/2021 and consequently, dismiss the

Crl.Misc.No.2094/2021 filed by the respondent No.1 herein.

2. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent No.2-State.

3. The factual matrix of the case of the prosecution is

that on 25.11.2020 at about 3.00 a.m., the accused Shamanth,

who was unknown to the family of the petitioners herein without

having any reason, trespassed upon the property of the

petitioners herein and started banging on the front door and

forced them to open the door. In confusion, the door was

opened, the accused pushed all of them, when the second

petitioner was trying to call police, the accused snatched her

mobile phone and kept it with him. He committed the offences

alleged in the first information. Even if he was intending to

marry someone, the acts committed by him amount to offences

alleged in the first information. The police having received the

complaint, registered the case invoking the offences punishable

under Sections 448, 354, 323, 511, 453 and 387 of IPC and also

Sections 66(B) and 66(C) of the Information and Technology

Act, 2000.

4. The respondent No.1 has approached the Trial Court

in Crl.Misc.No.2094/2021 invoking Section 438 of Cr.P.C. and

the Trial Judge having considered the gravity of the offence and

the allegation made in the complaint, allowed the bail petition in

coming to the conclusion that there is absolutely, no material

forthcoming from the prosecution to show any antecedents of

the petitioner that he committed similar offences or any offences

earlier. The observation of the Trial Court is also that whether

the petitioner has done the so called offence as contended by the

complainant is a matter which has to be decided only at the time

of full-fledged trial and hence, the discretion is exercised under

Section 438 of Cr.P.C. in favour of the respondent No.1 herein.

Hence, the present petition is filed by the informant and also the

victims.

5. The main contention of the learned counsel

appearing for the petitioners is that the Trial Court failed to

exercise its discretion by judicial thought process and failed to

consider the material on record and specific allegation is made

against the respondent No.1 that he had snatched the mobile

and also destroyed the mobile data information available on the

mobile. The counsel also brought to the notice of this Court the

objection statement filed before the Sessions Judge, wherein at

paragraph Nos.4, 5 and 6, categorical averments are made with

regard to trespassing the house in the early morning and also

committing the offences of I.T act as well as destroying the

mobile data information. In spite of the said averments, the

Trial Court has not considered the same. The counsel would also

submit that the reasons given by the Trial Court is not based on

the material available on record and the only reason assigned is

that there was no criminal antecedents against the respondent

No.1 and the allegation has to be decided in trial. The very

approach of the Trial Court is erroneous and not considered the

material on record. Hence, it requires interference of this Court.

6. Learned counsel appearing for the petitioners in

support of his contention, relied upon the judgment of the Apex

Court in the case of SUBODH KUMAR YADAV VS. STATE OF

BIHAR AND ANOTHER reported in (2009) 14 SCC 638 and

brought to the notice of this Court paragraph No.16, wherein the

Apex Court has observed that, if a superior Court finds that the

Court granting bail had acted on irrelevant material, or if there

was non-application of mind or failure to take note of any

statutory bar to grant bail, or if there was manifest impropriety

as far example failure to hear the Public Prosecutor/complainant

where required, an order for cancellation of bail can in fact be

made.

7. The counsel also relied upon the judgment of the

Apex Court in the case of DINESH M.N. (S.P.) VS. STATE OF

GUJARAT reported in (2008) 5 SCC 66, wherein also the Apex

Court observed that, while exercising the power under Section

439(2), scope of exercise of power by High Court, appreciation

of evidence for cancellation of bail, consideration of irrelevant

materials, held that while canceling bail, the Court can consider

whether irrelevant materials were taken into consideration or not

by the Court granting bail.

8. Per contra, learned High Court Government Pleader

appearing for the respondent No.2-State would submit that the

Trial Court has not assigned appropriate reason and brought to

the notice of this Court paragraph No.11, wherein the Trial Court

has made an observation in the order that it is a matter of trial

and when the petitioner is ready to abide by the terms and

conditions, the interest of the prosecution can be safeguarded

and except those reasons, the Trial Court has not considered the

material available on record. Hence, it requires interference of

this Court.

9. This Court issued notice against the respondent No.1

and the respondent No.1 though served in the month of October,

2021, no representation through counsel and also not appeared

before the Court.

10. Having heard the learned High Court Government

Pleader appearing for the respondent No.2-State and the learned

counsel for the petitioners, this Court has to take note of the

nature of allegation made against the respondent No.1 herein

i.e., trespassing the house in the early morning at 3.00 a.m. and

also snatched the mobile belonging to the victim and destroyed

the mobile data information and assaulted the wife of the

complainant and also taken the unmarried sister-in-law of the

complainant by name Yashaswini with him and hence, complaint

is lodged.

11. Having taken note of the allegation made in the

complaint, the police have invoked the offences against the

respondent No.1 under Sections 448, 354, 323, 511, 453 and

387 of IPC and also Sections 66(B) and 66(C) of the Information

and Technology Act, 2000. No doubt, there is a specific

allegation in the complaint that the respondent No.1 had

destroyed the mobile data information, but the offences which

are invoked against the respondent No.1 is not punishable with

death or imprisonment for life. Hence, taking note of the gravity

of the offence and the seriousness of the allegation made in the

complaint, the Trial Judge, while exercising the discretion

invoking Section 438 of Cr.P.C. also assigned the reason that no

material is forthcoming from the prosecution side to show the

antecedents of the petitioner that he committed similar offences

and also taken note of the apprehension of the prosecution

regarding the fact that the petitioner may abscond and

conditions are also imposed for securing him. Apart from that,

direction is also given to the petitioner to make himself available

for interrogation and also condition is imposed that he shall not

directly or indirectly make any inducement, threat or promise to

any person acquainted and shall not hamper further

investigation of the case and tamper with prosecution witnesses.

Apart from that, the Court also directed the petitioner not to

commit similar offence.

12. When such conditions are also imposed while

exercising the discretion under Section 438 of Cr.P.C. in favour

of the petitioner safeguarding the interest of the prosecution

taking note of the nature of offences invoked against the

petitioner, I do not find any error committed by the Trial Court

and no ground is made out by the petitioners for cancellation of

bail invoking Section 439(2) of Cr.P.C.

13. It is settled principle of law that the Court can invoke

Section 439(2) of Cr.P.C. for cancellation of bail, if cogent

material is not considered by the Trial Court and granting bail

and cancellation of bail are distinct in its nature. It is also

settled principle of law that the Court can invoke the jurisdiction

of Section 439(2) of Cr.P.C. in a heinous offence considering the

gravity of the offence and if the Trial Judge, while invoking

Section 438/439 of Cr.P.C. not complied the judicial thought

process, then only, the Court can invoke Section 439(2) of

Cr.P.C. and the Court cannot invoke the same as a routine.

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

following:

ORDER

The Criminal Petition is rejected.

Sd/-

JUDGE

ST