State Of Karnataka vs K.P.Harish
2022 Latest Caselaw 424 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.250/2021
                     CONNECTED WITH
   CRIMINAL PETITION NOS.260/2021, 261/2021, 299/2021


In Crl.P.No.250/2021

BETWEEN:

STATE OF KARNATAKA
BY KERAGODU POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU 560 001
                                              ... PETITIONER
(BY SRI VINAYAKA V.S., HCGP)

AND:

1. K.P.HARISH
S/O PUTTASWAMY K M
AGED ABOUT 36 YEARS
R/O S.I. KODIHALLI
KERAGODU HOBLI
MANDYA 574101

2. RAGHU @ RAKESH
S/O B RAJU
AGED ABOUT 30 YEARS
R/O LIG 250, HEBBALA
1ST STAGE, LAKSHMIKANTHANAGARA
MYSURU 570001
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3. YASHAVANTH G S
S/O C SIDDARAMAIAH
AGED ABOUT 25 YEARS
R/O B GOWDAGERE VILALGE
KEREGODU HOBLI
MANDYA 574101

                                         ... RESPONDENTS
(BY SRI. HEMANTH KUMAR K, ADVOCATE)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
09.09.2020 PASSED IN CRL.MISC.NO.503/2020 ON THE FILE OF
THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA, GRANTING BAIL TO THE ACCUSED NOS.1, 2 AND 7 -
RESPONDENTS IN CR.NO.138/2020 OF KERAGODU POLICE
STATION, MANDYA DISTRICT, REGISTERED FOR THE OFFENCES
P/U/S 302, 201 R/W 34 OF IPC AND CANCEL THE SAID ORDER
OF BAIL.

In Crl.P.No.260/2021

BETWEEN:

STATE OF KARNATAKA
BY KERAGODU POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU 560 001
                                           ... PETITIONER
(BY SRI VINAYAKA V.S., HCGP)

AND:

B.S.BIMESH
S/O SIDDARAJU
AGED ABOUT 36 YEARS
R/O BEVINAHALLI
MANDYA - 571 401

                                          ... RESPONDENT
(BY SRI. HEMANTH KUMAR K, ADVOCATE)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
09.09.2020 PASSED IN CRL.MISC.NO.553/2020 ON THE FILE OF
THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA, GRANTING BAIL TO THE ACCUSED - RESPONDENT IN
CR.NO.138/2020 OF KERAGODU POLICE STATION, MANDYA
DISTRICT, REGISTERED FOR THE OFFENCES P/U/S 302, 201
R/W 34 OF IPC AND CANCEL THE SAID ORDER OF BAIL.

In Crl.P.No.261/2021

BETWEEN:

STATE OF KARNATAKA
BY KERAGODU POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU 560 001
                                           ... PETITIONER
(BY SRI VINAYAKA V.S., HCGP)

AND:

1.     MAHESHKUMAR K.P. @ MAHESH
       S/O PUTTASWAMY K.M.
       AGED ABOUT 39 YEARS

2.     MANJU, S/O LATE RAMAKRISHNA
       AGED ABOUT 38 YEARS

       BOTH ARE R/O S.I. KODIHALLI
       KERAGODU HOBLI
       MANDYA - 571 401
                                      ... RESPONDENTS
(BY SRI. HEMANTH KUMAR K, ADVOCATE)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
09.09.2020 PASSED IN CRL.MISC.NO.493/2020 ON THE FILE OF
THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA, GRANTING BAIL TO THE ACCUSED - RESPONDENT IN
                                4



CR.NO.138/2020 OF KERAGODU POLICE STATION, MANDYA
DISTRICT, REGISTERED FOR THE OFFENCES P/U/S 302, 201
R/W 34 OF IPC AND CANCEL THE SAID ORDER OF BAIL.

In Crl.P.No.299/2021

BETWEEN:

STATE OF KARNATAKA
BY KERAGODU POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU 560 001
                                           ... PETITIONER
(BY SRI VINAYAKA V.S., HCGP)

AND:

CHANDAN K.P. @ CHANDANKUMAR
S/O K.S.PRAKASH
AGED ABOUT 30 YEARS
R/O S.I.KODIHALLI
KEREGODU HOBLI
MANDYA - 571 401
                                          ... RESPONDENT
(BY SRI. HEMANTH KUMAR K, ADVOCATE)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
09.09.2020 PASSED IN CRL.MISC.NO.525/2020 ON THE FILE OF
THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA, GRANTING BAIL TO THE ACCUSED No.6 -
RESPONDENT IN CR.NO.138/2020 OF KERAGODU POLICE
STATION, MANDYA DISTRICT, REGISTERED FOR THE OFFENCES
P/U/S 302, 201 R/W 34 OF IPC AND CANCEL THE SAID ORDER
OF BAIL.

     THESE CRIMINAL PETITIONS COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:
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                                ORDER

These petitions are filed under Section 439(2) of Cr.P.C.

praying to set aside the order dated 09.09.2020 passed by the I

Addl. District and Sessions Judge, Mandya in Crl. Mis.

Nos.503/2020, 553/2020, 493/2020, 252/2020 granting bail to

the respondents herein respectively in Cr.No.138/2020 of

Keragodu police station for the offence punishable under

Sections 302 and 201 read with Section 34 of IPC.

2. Heard the learned High Court Government Pleader

appearing for the petitioners-State and the learned counsel

appearing for the respondentsin all the matters.

3. The factual matrix of the case is that the

respondentshave been arraigned as accused Nos.2, 3, 5, 6, 7

and 8 in the aforesaid cases for the offences punishable under

Section 302 and 201 of IPC. An allegation against these

respondents is that the respondents along with the other

accused persons committed murder of one Byra who was also an

accused in Cr.No.139/2020 wherein an allegation is made

against him that in the absence of parents of minor victim girl,

subjected her for sexual harassment and the same came to

know when the victim girl was crying while urinating and hence,

they were having ill-will against the deceased and all of them

conspired each other and committed murder of the said Byra.

The respondents herein have approached the Trial Court in the

aforesaid respective Crl. Misc. Cases and the Trial Court during

the crime stage allowed the bail petition coming to the

conclusion that there was no previous enmity between the

deceased, there was mob, there must be sudden provocation

because of the deceased said to have sexually assaulted 7 year

old girl and taking into consideration of these respondents are in

JC for more than one month, custodial interrogation of these

respondents may not be required and hence, granted bail to

them.

4. Being aggrieved by the order of the Trial Court, the

present petitions are filed by the State contending that the Trial

Court has committed an error in entertaining the bail petitions

during the crime stage ignoring the seriousness of the offences

alleged against them. The learned Judge has committed an

error in granting bail to the respondents herein when there is an

overt act allegation of committing murder against them. The

counsel for the State would submit that the blood stain cloth of

the accused Nos.2 and 5 were seized and the same was sent to

the FSL and even without considering the FSL report, the learned

Judge has proceeded to pass an order only coming to the

conclusion that they were in custody for more than one month

and not assigned any valid reason and the reason assigned also

capricious in nature and it requires interference of this Court. He

further submits that FSL report is received and charge sheet is

also filed and the mother of the deceased also supported the

case of the prosecution since she has witnessed all these

persons taking the deceased.

5. Per contra, the learned counsel for the respondent

would submit that the case is rest upon the circumstantial

evidence and there are no eye-witness to the incident and apart

from that it was a mob incident as alleged by the prosecution.

The trial Judge in paragraph 17 has assigned the reason while

enlarging the petitioners on bail and hence, prayed to allow the

petitions.

6. Having heard the respective counsel and also on

perusal of the documents on record, it is appropriate to extract

the paragraph 17 of the order of the trial Judge which reads as

follows:

"17. I have gone through the judgments relied upon by learned PP and also I have gone through the facts of the present case and the petition averments. In the present case, as rightly argued by the learned counsel for petitioners (in Crl. Misc. No.493 and 503 of 2020), there was no previous enmity against the deceased, there was mob, there must be sudden provocation because of the deceased said to have sexually assaulted 7 year old child, taking into consideration of these petitioners are in JC for more than one month, custodial interrogation of these petitioners may not be required, further all these petitioners are the residents of Mandya Taluk, Keragodu Hobli, their presence can be secured during investigation, apprehension of the prosecution can be resolved by imposing stringent conditions. Hence, these petitioners are entitled to enlarge on bail"

7. Having read the said order, the Trial Court while

exercising the discretion comes to the conclusion that there was

no previous enmity against the deceased and the very reasoning

is against the case of the prosecution and the prosecution case is

that the deceased committed an offence against minor girl who

was aged about 7 years, the Trial Court noted that there must

be sudden provocation for sexual assault to the minor girl and

this reasoning also at the stage of crime is nothing but a

capricious as contended by the State and also reasoning given

by the Trial Court that the respondents are in JC for more than

one month is not a ground to enlarge them on bail when the

offence of murder is alleged against them and the said reasoning

is not a sound reason for enlarging them on bail. Apart from that

the Trial Court enlarged the respondents on bail at the stage of

crime without waiting the FSL report. Hence, the trial Judge has

not applied his judicious mind while granting the bail to the

respondents herein who have committed the murder having ill-

will against the deceased who also the accused in a case of

subjecting the minor daughter of accused No.3 for sexual assault

and all these reasons given by the Trial Court is nothing but a

perversity in passing an order and exercising the discretion and

hence, the very submission of the learned HCGP is clear that the

Trial Court has committed an error in enlarging the respondents

on bail during the crime stage when there is a heinous offence of

committing murder.

8. The Apex Court in the case of RAMESH BHAVAN

RATHOD VS VISHANBHAI HIRABHAI MAKWANA (KOLI)

AND ANOTHER reported in (2021) 6 SCC 230 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.

9. 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.

10. Having considering the judgments referred supra, it

is clear that the Trial Court has not applied its judicious mind

while granting bail at the stage of crime and also not considered

the seriousness of the offence and to wait for FSL report and the

reasons assigned also capricious in nature and hence, it requires

interference of this Court.

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

following:

ORDER

The petitions are allowed. Consequently, the order dated

09.09.2020 passed by the I Additional District and Sessions

Judge, Mandya in Crl. Mis. Nos.503/2020, 553/2020, 493/2020,

252/2020 granting bail to the respondents herein respectively in

Cr.No.138/2020 of Keragodu police station for the offence

punishable under Sections 302 and 201 read with Section 34 of

IPC are hereby set aside.

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

Presiding Officer, I Additional District and Sessions Judge,

Mandya and if the said Presiding Officer is transferred,

communicate the same to her where she is working at present.

Sd/-

JUDGE

SN