Karnataka High Court
State Of Karnataka vs D P Dilip Kumar on 27 January, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27 th
DAY OF JANUARY, 2022
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.420/2021
BETWEEN:
STATE OF KARNATAKA
BY SOMWARPET POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01. ... PETITIONER
(BY SRI VINAYAKA V.S, HCGP)
AND:
D.P.DILIP KUMAR
S/O LATE PONNAPPA
AGED ABOUT 38 YEARS
R/O. DODDAMALTHE VILLAGE
SOMARPET TALUK
KODAGU DISTRICT-571 201. ... RESPONDENT
(BY SRI PRAMOD R, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
24.06.2019 IN CRL.MISC.NO.198/2019 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL
JUDGE, KODAGU AT MADIKERI AND CANCEL THE SAID ORDER
OF BAIL IN CR.NO.73/2019 REGISTERED BY THE SOMWARPET
POLICE STATION, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC AND TO DIRECT THAT THE
2
ACCUSED/RESPONDENT BE ARRESTED AND COMMITTED TO
CUSTODY.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
'THROUGH VIDEO CONFERENCE' THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
Heard the learned High Court Government Pleader
appearing for the petitioner/State and the learned counsel
appearing for the respondent.
2. This petition is filed under Section 439(2) of Cr.P.C,
by the Petitioner - State praying this Court to set aside the order
dated 24.06.2019 passed in Crl.Misc.No.198/2019 on the file of
Court of I Addl. District & Sessions Judge and Special Judge,
Kodagu at Madikeri, and to cancel the said order granting of bail
for an offence punishable under Section 302 of IPC. An accused
was arrested and committed to custody.
3. The factual matrix of the case of the prosecution is
that a double murder was committed. In the complaint, the
sister of the deceased suspected the role of the respondent
herein. Based on the same, a case has been registered and the
matter was under investigation and at that juncture, the
respondent has approached the Trial Court for grant of bail.
4. The Trial Court having heard the respective counsel
appeared before the Trial Court, made an observation in
paragraph No.10 of the order that the petitioner is in judicial
custody from 02.05.2019 till today. The complainant has stated
in her complaint that, because of enmity with her sister Kavitha,
petitioner might have murdered her sister. Further observed that
when there is no direct allegation against the petitioner
regarding commission of an offence, it cannot be said that the
petitioner was involved in this case at this stage, which requires
to be investigated by the police. Till then the petitioner cannot
be put in Judicial Custody as a measure of punishment in the
stage of pre-trial. Hence, granted bail. The same is questioned
before this Court in this petition contending that the trial Judge
has committed an error in enlarging the petitioner on bail in a
heinous offence of double murder that too in a crime stage and
failed to apply his mind.
5. The learned High Court Government Pleader
appearing for the petitioner/State would contend that the blood
stained weapons and clothes were subjected to FSL examination,
which was recovered at the instance of the respondent. The said
FSL report is also conclusive that the blood found on the said
clothes and weapons belonged to the deceased and that of the
blood stains of the clothes of the accused was also found. Apart
from that, both post-mortem report of the deceased Kavitha,
who is aged about 45 years would show six chop wounds and the
post-mortem report of the deceased Jagashree, aged about 17
years, also would show five chop wounds and it is a barbaric act.
Instead of waiting for the FSL report with regard to the recovery
is concerned during the crime stage, the bail has been granted,
the same is perverse and capricious. Hence, it requires an
interference of this Court.
6. Per contra, the learned counsel appearing for the
respondent would submit that the case is rests upon the
circumstantial evidence and there are no eyewitnesses to the
incident and also the respondent was in the custody from the
date of his arrest i.e., 02.05.2019 and the trial Judge while
passing the order in paragraph No.10 discussed in detail that
there is no direct allegation against the petitioner regarding
commission of an offence. Hence, the matter requires to be
investigated by the police and no need to continue him in the
custody as a measure of punishment in the stage of pre-trial.
Hence, the order does not amount to any perverse or capricious
order. The learned counsel also would submit that after granting
bail, the charge-sheet was also filed. Hence, it does not require
any interference of this Court.
7. Having heard the respective counsel and also on
perusal of the material available on record, particularly, the
complaint, wherein, a specific allegation is made in the complaint
that she comes to know about committing the murder of his
sister and his sister's daughter in the copy plantation,
immediately she rushed to the spot found the dead body and
murder was committed by using the deadly weapons and found
chop wounds. A specific allegation is that due to previous
enmity, suspected the role of the respondent and mentioned his
name and based on the complaint a case has been registered on
the very same day. The investigation is under progress when the
bail order was passed.
8. Having perused the order, the prosecution also filed
detailed objections opposing the bail application, wherein,
specifically stated that there was a dispute between the
petitioner and the deceased Kavitha regarding the pathway. In
this regard, a civil case is also pending and argued that a prima
facie case is made out against the respondent. The learned
Judge while passing the order in paragraph No.10, no doubt,
assigned the reason but stated that he is in custody from
02.05.2019, but comes to the conclusion that there is no direct
allegation against the respondent. But on perusal of the
complaint, it is very specific that there was an enmity between
the deceased and the respondent herein. Apart from that, a
reasoning given by the Trial Court is that when there is no direct
allegation against the petitioner regarding commission of an
offence, it cannot be said that the petitioner was involved in this
case at this stage. During the crime stage itself, the trial Judge
has comes to the conclusion that it cannot be said that the
petitioner was involved in the case. Apart from that, the Trial
Court came to the conclusion that which requires to be
investigated by the police. But exercised the discretion in favour
of the respondent coming to the conclusion that he cannot be
put in judicial custody as a measure of punishment. The very
approach of the Trial Court is capricious and perverse and when
the Court itself comes to the conclusion that it requires
investigation by the police, when the double murder was
committed, when a civil dispute is pending between the parties
with regard to the pathway and the same is also brought to the
notice of the Trial Court and when the recovery is also made at
the instance of the accused on 02.05.2019 itself, within three
days of committing the double murder i.e., weapon used and
also the clothes of the accused and FSL report is also awaited, in
a hurried manner that too in a double murder case granted bail
even without waiting for filing of the charge-sheet and also
receipt of FSL report. The bail is granted in a case of double
murder within a span of two months and twenty two days and
the reasons assigned in the order also shocking the conscience
of the Court. The victim, aged about 45 years and it is also the
specific case of the prosecution that when the daughter, who is
the minor, aged about 17 years tried to take the snaps of
assaulting his mother, he chased and committed the murder of
17 year old girl and in a barbaric act and an allegation is made
that the trial Judge failed to even take note of the post-mortem
reports, which disclose external injuries and chop wounds. There
are six chop wounds on the victim Kavitha and five chop wounds
on the other minor girl, who is aged about 17 years and the
cause of death is also on account of shock and hemorrhage on
account of chop wound injuries. When a heinous offence of
double murder is committed in a callous manner, the Trial Court
has exercised the discretion.
9. I have already pointed out that even not waited for
receipt of FSL report with regard to the recovery is concerned
and even till filing of the charge-sheet, the Trial Court came to
the conclusion that the case is rests upon the circumstantial
evidence when there is no direct evidence. Now, the FSL report
is also received and it clearly discloses the Articles - 1, 3, 5, 6, 7,
8, 9, 10, 11, 12, 13, 18, 19, 20, 21 and 22, the blood stains was
detected and also it is clear that the blood group is 'O' group
blood. These are the articles belongs to the accused as well as
the deceased i.e., the clothes as well as the weapons used for
committing the murder. Hence, it is a case to invoke Section
439(2) of Cr.P.C.
10. This Court would like to rely upon the Apex Court
judgment reported in (2021) 6 SCC 230 in the case of
RAMESH BHAVAN RATHOD vs VISHANBHAI HIRABHAI
MAKWANA (KOLI) AND ANOTHER with regard to exercising
of the powers under Section 439 of Cr.P.C held that the Court
has to look into the seriousness and gravity of offences
committed and severity of punishment in the even of conviction,
failure of High Court to consider while granting bail and in the
absence of reasons also the order of granting bail in the present
case held perverse and set aside the order of granting bail. It is
further observed that necessity of recording reasons for grant or
denial of bail though the Court considering bail application does
not need to launch into detailed evaluation of facts on merits
since criminal trail is still to take place, yet court granting bail
cannot be oblivious of its duty to apply judicial mind and to
record reasons, brief as they may be for the purpose of deciding
whether or not to grant bail and further observed that
mandatory duty of the court to record reasons when granting
bail and grant of bail is a matter involving exercise of judicial
discretion and judicial discretion in granting or refusing bail as in
case of any other discretion which is vested in court as judicial
institution, is not unstructured and duty to record reasons is
significant safeguard which ensures that discretion which is
entrusted to court is exercised in judicious manner and recording
of reasons in judicial order ensures that thought process
underlying order is subject to scrutiny and that it meets
objective standards of reason and justice thus, bail order which
does not contain reasons for prima facie concluding that bail
should be granted is liable to be set aside for non-application of
mind.
11. The learned High Court Government Pleader
appearing for the respondent-State also relied upon the
reportable judgment of the Apex Court in the case of HARJIT
SINGH vs INDERPREET SINGH @ INDER AND ANOTHER IN
CRL.A.NO.883/2021 DATED 24.08.2021 and brought to the
notice paragraph 17 wherein also the Apex Court held the
Appellate Court is required to consider whether the order
granting bail suffers from a non-application of mind or is not
borne out from a prima facie view of the evidence on record. It
is thus necessary for this Court to assess whether, on the basis
of the evidentiary record, there existed a prima facie or
reasonable ground to believe that the accused had committed
the crime, also taking into account the seriousness of the crime
and the severity of the punishment. The Apex Court also
referred the case of RAJESH KUMAR vs STATE OF
RAJASTHAN reported in 2019 SCC Online Raj 5197 in the
said judgment and also in detail discussed paragraph 8 of the
said judgment referring several judgment of the Apex Court
regarding exercising of the powers under Section 439 of Cr.P.C.
12. Having considered the principles laid down in the
judgments referred supra as well as the factual aspects of the
case, it is nothing but a perverse and capricious order passed by
the Trial Court in a hurried manner without waiting for filing of a
charge-sheet and the FSL report and came to the conclusion that
the case is rests upon the circumstantial evidence and there is
no direct evidence. When the sound circumstances are available
against the respondent and the recovery was made at the
instance of this respondent i.e., weapon used to commit the
murder and the blood stained clothes immediately, the Trial
Court ought not to have granted bail in favour of this respondent
invoking Section 439 of Cr.P.C. Hence, the order of the Trial
Court is capricious and perverse and it is a fit case to invoke
Section 439(2) of Cr.P.C. to cancel the bail and to set aside the
order passed by the Trial Court in favour of this respondent
allegedly committed double murder in connection with the prior
enmity and also a civil dispute between the parties. Hence,
when this respondent availed the benefit under Section 439 of
Cr.P.C, he has to be taken into custody in view of the
cancellation of bail.
13. In view of the discussions made above, I pass the
following:
ORDER
The petition is allowed. Consequently, the
order dated 24.06.2019 passed by the I Additional
District and Sessions Judge and Special Judge,
Kodagu at Madikeri in Crl. Misc. Nos.198/2019
granting bail to the respondent herein of Somwarpet
police station for an offence punishable under
Section 302 of IPC is hereby set aside.
This order shall be communicated to the Trial
Judge forthwith and the Trial Judge is directed to
take the respondent herein to the custody forthwith.
Registry is directed to forward a copy of this
order to the Presiding Officer, I Additional District
and Sessions Judge and Special Judge, Kodagu at
Makikeri and if the said Presiding Officer is
transferred, communicate the same to him where he
is working at present for his academic purpose and
not to pass perverse order in future.
Sd/-
JUDGE
cp*/SN
