Karnataka High Court
Shri Mumtaz Mehadi vs State Of Karnataka on 23 February, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.7495/2021
BETWEEN:
SHRI MUMTAZ MEHADI
S/O LATE ABJEEMIA
AGED ABOUT 40 YEARS
R/A. INDIRA COTTAGE
SATHANOOR CIRCLE
CHANNAPATNA TOWN
RAMANAGARA DISTRICT - 562 160. ... PETITIONER
(BY SRI SANATH KUMARA K.M., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY MANDYA EAST POLICE
MANDYA - 571 401
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
2. SYED RIZWAN BANU
W/O LATE ALTHAFF MEHANDI
AGED ABOUT 36 YEARS
R/O SABDARIYABADH MOHALLA
MANDYA CITY - 571 401. ... RESPONDENTS
(BY SRI K.K.KRISHNA KUMAR, HCGP FOR R1;
R2-IS SERVED, BUT UNREPRESENTED)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
04.09.2021 PASSED IN CRL.MISC.NO.877/2021 BY THE
LEARNED I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA AND CANCEL THE BAIL GRANTED TO RESPONDENT
NO.2/ACCUSED NO.1 IN CR.NO.109/2021 ON THE FILE OF THE
MANDYA EAST POLICE, MANDYA.
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.,
praying to set aside the order dated 04.09.2021 passed in
Crl.Misc.No.877/2021 by the I Additional District and Sessions
Judge at Mandya and cancel the bail granted to respondent
No.2/accused No.1 in Crime No.109/2021 of Mandya East Police
Station, Mandya District.
2. Heard the learned counsel appearing for the
petitioner and learned High Court Government Pleader appearing
for respondent No.1-State.
3. The factual matrix of the case of the prosecution is
that, respondent No.2 was having illicit relationship with accused
No.2 and committed the murder of her husband in the house of
the respondent and cause of death is due to strangulation. The
deceased was working as a Vice Principal in Government P.U.
College. Regarding illicit relationship between the respondent
and accused No.2, the deceased had lodged a complaint with the
Superintendent of Police on 07.10.2020. In pursuance of the
said complaint, both the respondent as well as accused No.2
have given the statement and undertaking before the concerned
Police that they will not continue the illicit relationship. In spite
of the same committed the murder by way of strangulation on
29.06.2021. During the crime stage, the respondent has
approached the Trial Court for regular bail and the trial Judge
allowed the petition considering the order passed by this Court in
Crl.P.No.615/2019 that the accused/respondent No.2 is a
pregnant. Apart from that, taken note of the children, who are
aged about 18 years and 17 years and also given the reason that
the police were seized the materials connected to the offence
through accused No.1. But comes to the conclusion that it shows
although there is a prima facie material for commission of the
offence, the condition of the petitioner shows legal necessity for
the release on bail and allowed the bail with conditions. Hence,
the present petition is filed before this Court invoking under
Section 439(2) of Cr.P.C.
4. The learned counsel appearing for the petitioner
would vehemently contend that when the respondent committed
the murder of her husband along with her paramour in the house
belongs to her, committed serious offence and the trial Judge
failed to consider the nature of allegation and also prima facie
and reasonable ground to believe that the accused has
committed the offence and also failed to take note of the nature
and gravity of the accusation made against the respondent and
severity of punishment in the event of conviction and also failed
to take note of absconding or fleeing away from justice as well
as the character, behaviour, means, position and standing of the
accused as held in the judgment of the Apex Court in the case of
Prashanth Kumar Sarkar v. Ashis Cheterji and another
reported in (2010) 14 SCC 496, and only on the ground that
she is a pregnant, enlarged on bail. Hence, it requires an
interference of this Court.
5. The learned counsel appearing for the petitioner also
brought to the notice of this Court that prior to committing the
murder, the very deceased has lodged a complaint against the
wife and also against the paramour on 07.10.2020. Both accused
Nos.1 and 2 have given an undertaking before the office of
Superintendent and subsequently on 29.06.2021 within a span
of 8 months, committed the murder that too in the house of the
respondent. The cause of death is also on account of
strangulation. When there is a prima facie material against the
respondent and during the crime state even before completion of
investigation, the trial Judge has granted the bail. Hence, the
very reasoning given by the Trial Court is perverse and
capricious.
6. The learned High Court Government Pleader
appearing for respondent No.1-State would submit that during
the crime stage, the bail is granted that too in an offence under
Section 302 of IPC and cause of death is also on account of
strangulation and also the death was taken place in the house of
respondent No.2.
7. Having heard the respective Counsel and also on
perusal of the material available on record, the records also
discloses that an illicit relationship is alleged against respondent
No.2 and accused No.2. Eight months prior to committing the
murder, the complaint was given and in pursuance of the
complaint, both accused Nos.1 and 2 have given an undertaking
before the police that they would not continue the illicit
relationship. In the case on hand, the death was taken place in
the house of the respondent herein and that too strangulation.
It is also the case of the prosecution that the respondent as well
as the paramour committed the murder by way of strangulation.
When such material is available before the Court, the Trial Court
has committed an error in exercising the discretion during the
crime stage that too only on the ground that she is a pregnant
and she is having other two children. When an heinous offence is
committed the trial Judge has to wait till filing of the charge-
sheet. If charge-sheet is filed, then evaluate the material based
on the material collected by the Investigating Officer that would
have been the reasonable exercising of discretion. But in the
case on hand, in a stage of crime only, the bail was granted.
Hence, the reason assigned by the Trial Court is perverse,
capricious and failed to take note of the nature of the offences
and the seriousness of the allegation and the gravity of the
accusation made against respondent No.2 and also the
punishment provided for committing the murder. Hence, it is a
fit case to exercise the powers under Section 439(2) of Cr.P.C.,
to cancel the bail granted in favour of respondent No.2.
8. In view of the discussions made above, I pass the
following:
ORDER
(i) The Petition is allowed.
(ii) The impugned order dated 04.09.2021 passed
in Crl.Misc.No.877/2021 by the I Additional
District and Sessions Judge at Mandya, is
hereby set aside.
(iii) Consequently, the bail granted in favour of
respondent No.2/accused No.1 is hereby
cancelled and directed to secure respondent
No.2/accused No.1 and keep her in custody.
Sd/-
JUDGE
cp*
