State Of Karnataka vs Farhan Pasha
2022 Latest Caselaw 422 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY, 2022

                         BEFORE

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

              CRIMINAL PETITION NO.1914/2021

BETWEEN:

STATE OF KARNATAKA
BY N R POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU
                                               ... PETITIONER
(BY SRI VINAYAKA V.S., HCGP)

AND:

FARHAN PASHA
S/O MAQBUL AHAMED
AGED ABOUT 25 YEARS
R/AT NO. 611, 3RD CROSS
GOWSIANAGARA, K.N. PURA
MYSURU TALUK
MYSURU DISTRICT 570001
                                           ... RESPONDENT
(RESPONDENT IS SERVED)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO CANCEL BAIL ORDER DATED
21.09.2020   PASSED     IN   CRL.MISC.NO.760/2020     IN
CR.NO.150/2019 PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MYSURU AND CANCEL THE SAID ORDER
OF BAIL FOR THE OFFENCE P/U/S 109, 114, 120B, 201 R/W 34
OF IPC AND SEC.25 OF ARMS ACT OF THE NARASIMHARAJA
POLICE STATION AND ETC.
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     THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:

                             ORDER

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

cancel the order dated 21.09.2020 passed in Crl. Misc. No.760/2020 in

Cr.No.150/2019 by III Additional District and Sessions Judge, Mysuru.

2. Heard the learned High Court Government Pleader appearing

for the State and the learned counsel appearing for the respondent.

3. Notice issued against the accused/respondent was

served and there is no representation on his behalf.

4. The factual matrix of the case is that the respondent

herein has made an attack on the sitting M.L.A. in a public

function with a knife on his neck and caused injuries to him. The

respondent was apprehended by the public at the spot and

handed over to the Police and a case was registered against him.

Investigation has been completed and the charge-sheet is filed.

5. The respondent herein has moved an application for

bail and the same has been considered by the trial Judge and

while considering, made an observation that the investigation is

completed and the Court need not go into the evidence on

record in such a depth which amounts to ascertaining of

propriety of the accused and there was no previous animosity or

ill-will against the victim by the accused or vise-versa and the

respondent has undertaken to obey the conditions and enlarged

on bail. Hence, the present petition is filed by the State seeking

cancellation of the bail.

6. The main contention of the learned High Court

Government Pleader appearing for the State is that when the

attack was made in the presence of the general public which

aiming to commit the murder of the sitting M.L.A. and inflicted

injuries on the vital part i.e., on the neck and also the injuries

are grievous in nature.

7. The learned HCGP submits that the Trial Court while

exercising the powers under Section 439 of Cr.P.C. came to the

conclusion that the investigation of the case is completed and

the charge sheet is filed and the case is now stood for trial and

the Court need not to go into the evidence on record in such a

depth which amounts to ascertaining the probability of convicting

the accused and the petitioner is undertaken to abide by the

conditions imposed by the Trial Court and hence, allowed the

petition and the very reasoning given by the Trial Court is

erroneous. The counsel would vehemently contend that the Trial

Court failed to take note of the nature of the injuries sustained

by the victim and this petitioner also involved in 14 other cases

and four cases are still pending for Trial before the Court and he

is a habitual offender and this petitioner instigated accused

Nos.3 to 5 and 7 to commit the offence and anti-national

documents i.e., postures opposing the Babri Maszid judgments

and also donation collection books were seized from his house

and the accused Nos.3 to 6 and 7 are the members of PFI and

SDPI and before committing the offence held a meeting on

15.11.2019 and the Court has to take note of the intention of

the mind while committing the offence and all these factors have

not been considered and the reasons assigned by the Trial Court

that if the material is appreciated the same amounts to

appreciation of material on record and the very approach of the

Trial Court is erroneous.

8. The learned HCGP in support of his argument relied

upon the 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 wherein it is held

that while invoking Section 439 of Cr.P.C., the Court has to take

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

the charge sheet but the Trial Court has failed to exercise the

discretionary power applying judicious mind and hence, it

requires interference of this Court.

9. The respondent did not choose to appear and engage

any counsel. Having heard the learned HCGP and also on perusal

of the material on record it is clear that the incident was taken

place on 17.11.2019 and the victim was attending in the open

function and in the said function the respondent inflicted the

injury with the knife that too on the vital part i.e., on the neck

and hence, it is clear that intention was clear in his mind to take

away the life of the victim who is a sitting MLA at the time of the

incident and when the petitioner tried to escape from the spot

and he was apprehended by the public who were at the spot

along with the weapon which was used to committing the alleged

offence and the learned Judge while exercising the discretion

ought to have taken note of the nature of the injuries sustained

by the victim on the vital part i.e., neck and those injuries are

also grievous in nature but nothing is considered by the Trial

Court while granting the bail and simply came to the conclusion

that need not to go into the evidence on record and in a such

depth ascertaining the probability of convicting the accused.

The Court while exercising the discretion has to see the prima

facie material collected by the IO when an attack is made

against the sitting MLA that too on his neck and those injuries

are grievous in nature and the Court has to take note of the

intention of the accused in his mind in inflicting the injury on the

vital part of the neck and this aspect is not considered by the

Trial Court but came to the conclusion that there was no

previous enmity or ill-will and the petitioner has undertaken to

abide by the conditions that cannot be a ground to enlarge the

petitioner on bail.

10. This Court would like to refer the judgment of the

Apex Court in the case of RAMESH BHAVAN RATHOD vs

VISHANBHAI HIRABHAI MAKWANA (KOLI) AND ANOTHER

reported in (2021) 6 SCC 230 wherein it is held that whether

order granting bail is a precedent is a matter for future

adjudication if and when application for bail is moved on grounds

of parity and apart from that the Apex Court 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 HCGP 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 with

regard to the consideration of the bail application and relevant

factors. Having taken note of the principles laid down in the

judgments referred supra, it is a fit case to exercise the powers

under Section 439(2) of Cr.P.C. to cancel the bail by setting

aside the order passed by the Trial Court.

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

following:

ORDER

The petition is allowed. Consequently, the order dated

21.09.2020 passed by the III Additional District and Sessions

Judge, Musuru in Crl. Mis. No.760/2020 granting bail to the

respondent herein in Cr.No.150/2019 of Narasimharaja police

station for the offence punishable under Sections 109, 114,

120B, 201 read with Section 34 of IPC and Section 25 of the

Arms Act are hereby set aside.

Registry is directed to forward a copy of this order to the

Presiding Officer, III Additional District and Sessions Judge,

Mysuru, who passed an order granting bail.

Sd/-

JUDGE

SN