Karnataka High Court
Sri Kumaraswamy vs State Of Karnataka on 24 January, 2022
Bench: K.S.Mudagal
1
CRL.A.No.1769/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1769/2021
BETWEEN:
SRI KUMARASWAMY
(MENTIONED AS KUMARASWAMY @
KUMAR @ KIRAN IN CHARGESHEET)
S/O SHIVARAMAIAH
AGED 37 YEARS,
R/O KAGGERE VILLAGE
IRAKASANDRA POST, CHELUR HOBLI
GUBBI TALUK,
TUMKUR DISTRICT-572 117 ...APPELLANT
(BY SRI. BHARATH KUMAR V, ADV.)
AND:
STATE OF KARNATAKA
BY MALLESWARAM POLICE STATION
NOW BY CID POLICE, BENGALURU
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU-560 001. ... RESPONDENT
(BY SRI.ASHOK N.NAIK, SPL. P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 439,
CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL.
C.C. NO.417/2016 OF MALLESWARAM P.S., BENGALURU CITY
FOR THE OFFENCE PUNISHABLE U/S 411, 454, 457, 380, 381,
461, 166, 120B, 201 R/W SECTION 109 OF IPC, SECTIONS 115,
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CRL.A.No.1769/2021
23(III) OF KARNATAKA EDUCATION ACT AND SEC.3(1)(II),
3(2), 3(4), 3(5) OF KARNATAKA CONTROL OF ORGAIZED
CRIMES ACT ON THE FILE OF PRL. CITY CIVIL AND SESSIONS
JUDGE AT BENGALURU.
THIS CRIMINAL APPEAL COMING ON FOR DICTATION
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the rejection of his petition for
grant of bail on medical ground and for extension of
time to surrender before the jail authorities, 1st
accused in Spl. C.C. No.417/2016, has preferred the
above appeal.
2. Malleswaram Police filed charge sheet against
the appellant and 17 others for the offences
punishable under Sections 411, 454, 457, 380, 381,
461, 166, 120B, 201 read with Section 109 of IPC and
Sections 115 and 23 of the Karnataka Education Act,
and also under Sections 13(1)(d), 13(2) of the
Prevention of Corruption Act and Sections 3(1)(ii),
CRL.A.No.1769/2021
3(2), 3(4) and 3(5) of the Karnataka Control of
Organized Crimes Act, 2000. After taking cognizance,
the matter is pending in Spl. C.C.No.417/2016 before
the Principal City Civil and Sessions and Special Judge,
Bengaluru.
3. The case of the prosecution in brief is as
follows:
That the accused in collusion with each other,
indulged in hijacking question papers of II Year Pre-
University Board from safe custody of Government
treasury, copying the same and again replacing the
original question papers in the Treasury. It is alleged
that then they were circulating such question papers
to the candidates for monetary gain. It is alleged that
accused were indulging in such acts since 2008 and
ultimately in 2016, the scam was unearthed.
CRL.A.No.1769/2021
4. The allegation against the appellant is that
corrupting the 4th accused, an official of Sub Treasury
Office, Haveri, he trespassed into the strong room in
the night, picked up Physics, Chemistry and
Mathematics question papers, collected images of the
same in his mobile phone digitally and then placed the
original question papers back and came out of the
office. It is further alleged that in collusion with other
accused, he sold the said question papers to
candidates and made wrongful gain.
5. Bail applications filed by the appellant were
rejected by this Court four times and once it was
dismissed as withdrawn. The particulars of the said
bail applications are as follows:
Sl. Crl.P. No. Status
No.
1. 5996/2016 Rejected on 22.02.2017
2. 3225/2017 Dismissed as withdrawn on
29.06.17
3. 5590/2018 Bail rejected on
19.02.2019
4. 3467/2019 Bail rejected on
09.09.2019
CRL.A.No.1769/2021
5. 3585/2020 Bail rejected on
11.09.2020
6. Such being the fact, appellant again filed
bail petition before the Trial Court in Crl.
Misc.2276/2021 on medical grounds. He contended
that he is suffering from a chronic kidney disease and
has to undergo surgery immediately. The trial Court
vide order under Annexure-F dated 28.04.2021,
granted him bail for three months to enable him to
undergo such medical treatment. He was directed to
surrender before the Trial Court soon after the expiry
of three months, which expired on 31.07.2021. But he
did not surrender.
7. Appellant filed another application before
the Trial Court in Crl.Misc.6225/2021 seeking further
extension of time to surrender. The Trial Court
refused to grant said extension of time. Even
thereafter, he did not surrender before the authorities
CRL.A.No.1769/2021
and sought indulgence of the Trial Court for further
extension on same medical ground.
8. The Trial Court then referred the appellant
to the Medical Board Victoria Hospital Campus,
Bengaluru for medical examination. The said Medical
Board gave report as per Annexure-J dated
05.10.2021 stating that the appellant is required to
be referred to Institute of Nephro-Urology to obtain an
opinion.
9. In the meantime, prosecution opposed the
appellant's application for extension of time to
surrender on the ground that the medical records
produced by the appellant are fake.
10. The Trial Court then on hearing both side,
by the impugned order at Annexure-C, dismissed the
application for extension of time to surrender. Being
aggrieved by that order, the appellant has preferred
this appeal.
CRL.A.No.1769/2021
11. It was contended by the learned counsel
for the appellant that though the Medical Board stated
that further examination of the appellant by Nephro-
Urology Department at Victoria Hospital campus was
required, the Trial Court without referring to the said
observation, abruptly passed the impugned order.
Therefore according to him, the order under challenge
is unsustainable. It is contended that still the
appellant is suffering from serious health issues and
he needs medical attention.
12. To substantiate his contention of serious
ailments, appellant has produced a certificate at
Annexure-L dated 15.11.2021 said to have been
issued by Brindhavvan Areion Hospital.
13. The respondent seriously contests the appeal
on the ground that the appellant having involved in a
serious crime, is dodging the matter. It is also
CRL.A.No.1769/2021
contended that the medical certificate at Annexure-L
dated 15.11.2021 is a forged document. In support of
such contention, the respondent has produced the
certificate dated 6.12.2021 issued by Brindhavvan
Areion Hospital to the effect that Annexure-L is not
issued by the said hospital and the same is forged
one.
14. In view of the submission of the learned
counsel for the appellant, this Court vide order dated
07.01.2022 referred the appellant to Nephro-Urology
Department at Victoria Hospital campus, Bengaluru
and directed him to appear before the medical
authorities on 13.01.2022. The medical authority was
directed to submit a report to this Court by
18.01.2022. Accordingly, the said authority has
submitted a report on 17.01.2022.
15. The said report reads thus:
CRL.A.No.1769/2021
"After going through the investigation, it
was found that there were discrepancies
between physical examination and
investigation. So it was communicated
to the patient to appear before the
Board today for further investigation.
Further, he has expressed his inability to
appear before the Board today citing
health issues. Further investigations are
required to be done on him to arrive at a
proper conclusive report."
The report shows that the appellant did not
appear before the authorities as required.
16. The appellant has submitted an affidavit
stating that he was asked to appear before the
authorities with very short notice and therefore, he
could not appear, etc. If the authorities had given
him short notice, he could have submitted the same
before this Court. Only after receipt of the report, he
comes up with the affidavit.
CRL.A.No.1769/2021
17. As already noticed, earlier four petitions of
the appellant have been rejected by this Court on the
ground that he was involved in serious crimes. One of
the petitions was dismissed as withdrawn. Therefore,
on merit, there is nothing to consider.
18. So far as medical ground, it is stated that
appellant is suffering from chronic Kidney disease,
etc., and required immediate surgery. Considering
that, the learned Trial Judge vide order dated
28.04.2021, granted him three months time to
undergo the treatment required, if any. If that was
such emergent medical requirement, appellant could
have undergone the surgery. But he went on seeking
time.
19. Now from 28.04.2021, 8 months have
elapsed. Appellant has not submitted any records for
having undergone any surgery or medical procedure.
So far as the medical certificate at Annexure-L
CRL.A.No.1769/2021
purportedly issued by Brindhavvan Areion Hospital,
the said hospital itself by letter dated 06.12.2021
issued to the I.O. that Annexure-L labels that to be a
fake document. If that is the case, the matter
requires serious consideration as it amounts to
interfering with the judicial process and contempt of
Court.
20. Though appellant claims that his condition is
very critical, for nine months he has survived. The
report of Victoria Hospital shows that he did not
appear before the Medical Board as required. Despite
rejection of his prayer by the Trial Court, he did not
surrender before the trial Court or jail authorities. As
against that, on 07.01.2022, misleading that there
was already an interim protection order got another
interim protection order. Later, on examination of the
records, it is found that there was no such interim
protection order passed prior to 07.01.2022.
CRL.A.No.1769/2021
21. The above said facts go to show that the
appellant is guilty of abuse of process of the Court and
misconduct. There are no grounds to interfere with
the impugned order. Therefore, the appeal is
dismissed.
Appellant shall surrender before the Trial Court
forthwith failing which I.O. is at liberty to arrest him
and produce before the trial Court.
If any serious condition of the appellant is
reported by the jail authorities the trial Court can take
a report from the competent Medical Board and
reconsider the matter.
Registrar (Judicial) is requested to place the
order before Hon'ble The Chief Justice for initiation of
contempt proceedings against the appellant.
Sd/-
JUDGE
vgh*
