Karnataka High Court

State Of Karnataka vs Stephan on 25 February, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                          BEFORE

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

            CRIMINAL PETITION NO.8672/2021

BETWEEN:

THE STATE OF KARNATAKA
REP BY THE SBC
RAILWAY POLICE STATION
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU-560 001.                     ... PETITIONER

             (BY SRI VINAYAKA V.S., ADVOCATE)
AND:

STEPHAN
AGED ABOUT 22 YEARS,
S/O LATE RAJU
R/AT NO.18, 4TH CROSS,
PANDESHWAR, MEENADAKKE
BEHIND DODDA MASJID
MANGALURU, D.K.DISTRICT-575001.           ... RESPONDENT

        (RESPONDENT IS SERVED BUT UNREPRESENTED)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C. PRAYING TO CANCEL THE BAIL ORDER
DATED 13.10.2020 PASSED BY THE LII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (CCH-53) THEREBY
GRANTING BAIL TO THE RESPONDENT/ACCUSED UNDER
SECTION 439 OF CR.P.C FOR THE ALLEGED OFFENCES
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PUNISHABLE UNDER SECTIONS 399 AND 402 OF IPC IN
CR.NO.158/2018 REGISTERED BY S.B.C. RAILWAY POLICE
STATION, BENGALURU AND CONSEQUENTLY DIRECT THE
ACCUSED/RESPONDENT TO SURRENDER BEFORE THE TRIAL
COURT.

     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. for

cancellation of bail granted by the LII Additional City Civil and

Sessions Judge at Bengaluru to the respondent vide order dated

13.10.2020 passed in Crl.Misc.No.5671/2020 for the alleged

offence punishable under Sections 399 and 402 of IPC.

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

that the respondent and other accused persons on 07.08.2018 at

about 8.00 p.m. were making preparation to commit dacoity

holding deadly weapons in their hands by hatching a plan near

Okalipuram Railway bridge towards Malleshwaram i.e., near the

bushes of the said place and by hiding themselves and waiting

for the people to come near the said place, in order to rob them.

On credible information, the police apprehended them and on

enquiry, they revealed that they are intending to rob the public.

Hence, Crime No.158/2018 is registered invoking the offence

punishable under Sections 399 and 402 of IPC.

3. The respondent i.e., accused No.1 had approached

the Trial Court by filing Crl.Misc.No.5671/2020 and the Trial

Court had allowed the bail petition invoking Section 439 of

Cr.P.C. Hence, the present petition is filed for cancellation of

bail.

4. Learned High Court Government Pleader appearing

for the petitioner-State would submit that the trial Judge passed

the impugned order without application of mind and caused

miscarriage of justice. The offences alleged against the

respondent and the other accused persons are serious in nature

and the same is against the society. The Trial Judge has

committed grave error in observing that the alleged offences are

exclusively triable by the learned Magistrate and in view of

granting bail, there are chances of the respondent absconding

and obstructing the trial proceedings. Hence, bail requires to be

cancelled.

5. Learned High Court Government Pleader appearing

for the petitioner-State also vehemently contend that the Trial

Judge, while passing the order before filing the charge-sheet

comes to a conclusion in paragraph No.10 of the order that the

prosecution has not made out a case against the respondent and

the alleged offences are exclusively triable by the learned

Magistrate and they are not punishable with death or

imprisonment for life. He would also submit that, even though

the charge-sheet is not filed, the Trial Judge has averred in

paragraph No.10 that the Court has gone through the FIR,

charge-sheet as well as the police papers. He also brought to

the notice of this Court that the charge-sheet is filed on

20.12.2018 and FIR was registered on 07.08.2018 and the order

was passed on 13.10.2020, after almost 2 years, 2 months of

the alleged offence. Hence, it is a fit case to exercise the

discretion under Section 439(2) of Cr.P.C.

6. Having heard the learned High Court Government

Pleader appearing for the petitioner-State and also looking into

the factual aspects of the case, the records reveal that Crime

No.158/2018 is registered for the offence punishable under

Sections 399 and 402 of IPC and the accused-respondent was

also apprehended on the same day and he was in custody for a

period of 2 years, 2 months since, the order was passed on

13.10.2020. Learned High Court Government Pleader would

submit that charge sheet was filed on 20.12.2018 and it appears

that the High Court Government Pleader has mistakenly argued

that the charge sheet was filed after passing the order and

during the crime stage, the bail was granted.

7. Having taken note of the offence alleged against the

respondent, the only allegation against the respondent is that he

made an attempt to commit the offence of Sections 399 and 402

of IPC and the respondent was in custody for a period of 2 years,

2 months and the present petition is filed invoking Section

439(2) of Cr.P.C. The very contention of the learned High Court

Government Pleader appearing for the petitioner-State that the

Trial Court in paragraph No.10 has committed an error in

referring that it has gone through the FIR as well as the charge-

sheet is erroneous and the said contention cannot be accepted

since, the charge sheet is admittedly filed on 20.12.2018 and

nothing is averred in the petition that the respondent is having

any criminal antecedents against the petitioner herein. In order

to substantiate the same, nothing is placed on record.

8. Having considered the material on record, it is

nothing but an abuse of Court process, when the respondent was

in custody for a period of 2 years, 2 months for the offence

punishable under Sections 399 and 402 of IPC by filing the

petition for cancellation of bail and the Trial Court also while

exercising the discretion under Section 439 of Cr.P.C. has taken

note of the fact that the respondent was taken to custody on the

date of the incident itself and the records also reveal that charge

sheet was filed on 20.12.2018 and formed an opinion that

looking into the material on record, no prima facie case is made

out and there are no sufficient material to believe that the

accused has committed the alleged offence. Whether the

allegation made against the accused is true or not has to be

decided after full-fledged trial. Hence, the Trial Court granted

bail.

9. Having considered the material on record and also

looking into the factual aspects of the case, the incident has

taken place on 07.08.2018 and the respondent-accused was also

in custody for a period of 2 years, 2 months, even after filing of

charge sheet on 20.12.2018. When the Trial Court has exercised

the discretion and assigned reasons in paragraph No.10, without

any material before this Court, the State has invoked Section

439(2) of Cr.P.C. for cancellation of bail. Hence, it is a fit case

to dismiss the petition with exemplary cost and the provision

under Section 439(2) of Cr.P.C. has to be exercised sparingly

that too, when the Trial Court exercised the discretion without

considering the material on record.

10. The Apex Court also in the judgment in the case of

Dolat Ram and others v. State of Haryana reported in

(1995) 1 SCC 349 has held that the cancellation of bail already

granted must be considered and dealt with on different basis and

expression of opinion on merits at initial stage while dealing with

the application for anticipatory bail is improper. It is also held

that the Court can invoke Section 439(2) of Cr.P.C, if the Trial

Court has not considered the material on record. In the case on

hand, the Trial Court has considered the material after filing of

charge sheet on 20.12.2018 and the discretion was exercised on

13.10.2020, after two years, two months and the allegation is

also that an attempt was made to commit dacoity i.e.,

preparation. When such being the factual aspects of the case, it

is nothing but an abuse of process by the State by filing this

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

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

following:

ORDER

(i) The Criminal Petition is dismissed with exemplary cost of Rs.1 lakh. The same is payable within four weeks from the date of receipt of certified copy of this order. On deposit, the same shall be paid to the Advocates' Clerks Welfare Association.