Nelson Raj vs The State Of Karnataka
2022 Latest Caselaw 9193 Kant

                             1


                                                              R
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JUNE, 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.336 OF 2022
                       C/W
          CRIMINAL APPEAL NO.267 OF 2022
                        &
          CRIMINAL APPEAL NO.337 OF 2022

IN CRL.A.NO.336 OF 2022:

BETWEEN

NELSON RAJ,
AGED ABOUT 24 YEARS,
S/O. SAGAI DEVAKUMAR,
RESIDING AT NO.16, 1ST CROSS,
VIVEKANANDANAGAA,
JAIBHARATHNAGARA, M.S. NAGAR POST,
BANGALORE-560 033.                           ...   APPELLANT

[BY SRI. RAMAKRISHNA SRINIVASAN, ADVOCATE]

IN CRL.A.NO.267 OF 2022:

BETWEEN

1.   INDRAJITH C @ AJITH,
     AGED ABOUT 21 YEARS,
     S/O. CHANNAKRISHNA,
     R/AT PAPPANNA BUILDING,
     PAPPANNA LAYOUT, T.C. PALYA,
     K.R. PURAM, BANGALORE-560 036.

2.   SUBASH N.,
     AGED ABOUT 21 YEARS,
     S/O. LATE NAGARAJ,
     R/AT NO.93, 1ST CROSS,
     1ST MAIN, BATTARAHALLI,
     K.R. PURAM, BANGALORE-560 036.          ...   APPELLANTS

[BY SRI. RAMAKRISHNA SRINIVASAN, ADVOCATE]
                             2




IN CRL.A.NO.337 OF 2022:

BETWEEN

AVINASH,
AGED ABOUT 24 YEARS,
S/O. SAMPATH,
RESIDING AT NO.15, GARDEN STREET,
R.S. PALYA, M.S. NAGARA POST,
BANGALORE - 560 033.                           ...   APPELLANT

[BY SRI. RAMAKRISHNA SRINIVASAN, ADVOCATE]

AND

1.    THE STATE OF KARNATAKA
      BY BANASWADI POLICE STATION
      THROUGH THE HIGH COURT PUBLIC PROSECUTOR,
      5TH 'A' MAIN ROAD, HRBR LAYOUT,
      2ND BLOCK, KALYAN NAGAR,
      BENGALUR, KARNATAKA - 560 043.

2.    SMT. LAKSHMAMMA,
      AGED ABOUT 40 YEARS,
      RESIDING AT C/O. SMT. PUSHPAMMA RENT HOUSE,
      7TH CROSS, CHALLAGHATTHA,
      MURGESH PALYA ROAD,
      BANGALORE, KARNATAKA - 560 017.    ... RESPONDENTS
                                            (COMMON IN ALL APPEALS)



[BY SRI. R.D. RENUKARADHYA, HCGP FOR R.1;
    R.2 IS SERVED, UNREPRESENTED]

                           ***

      THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
14(A)(2) OF SC/ST (POA) ACT, PRAYING TO GRANT AN ORDER OF
REGULAR BAIL TO THE APPELLANT HEREIN U/S 14(A)(2) OF SC/ST
(POA) ACT IN CR.NO.337/2021 AT BANASWADI POLICE STATION
FILED U/S 302, 120(B) AND 149 OF IPC R/W 3(2)(v) OF SC/ST
(POA) AND SET ASIDE THE ORDER DATED 25.11.2021 PASSED IN
CASE NUMBER SPL.C.NO.1752/2021 BY THE LXX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, SMT.SINDHU
POTADAR, CCH-71.

     THESE CRIMINAL APPEALS COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                              3




                         JUDGMENT

These three appeals are preferred against the

impugned order dated 25.11.2021 passed by the Court

of LXX Additional City Civil and Sessions Judge and

Special Judge, at Bengaluru in Special Case

No.1752/2021.

2. Heard the learned counsel appearing for the

appellants and learned High Court Government Pleader

for respondent/State and perused the material on record.

3. Respondent No.2 is served but there is no

representation.

4. Charge Sheet has been filed against accused

Nos.1 to 6 in connection with Crime No.337/2021

registered at Banaswadi Police Station, for offences

punishable under Sections 302, 120B and 149 of IPC and

Section 3(2)(v) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989.

5. Criminal Appeal No.336/2022 is preferred by

accused No.2, Criminal Appeal No.337/2022 is preferred

by accused No.3 and Criminal Appeal No.267/2022 is

preferred by accused Nos.4 and 5 respectively.

6. The appellants herein preferred a petition

under Section 439 of Cr.P.C., before the Special Court

praying to enlarge them on bail, which was rejected vide

impugned order. Hence, they are before this Court.

7. Complaint is lodged by one Smt.Lakshmamma

mother of deceased Harish. It is alleged that on

28.07.2021 at about 1.30 p.m., her son was murdered

by one Rakshith and his associates by assaulting him

with deadly weapons like long etc., on his head and

other parts of the body.

8. The prosecution claims that CWs.1 to 4 are

the eye witnesses to the incident. CW.1 is the first

informant and she is the mother of the deceased, CW.2

is the sister and CWs.3 and 4 are the friends of the

deceased. The statements of CWs.1 to 4 as well as their

further statements have been recorded in the course of

investigation. Further, the statements of CWs.3 and 4

are recorded under Section 164 of Cr.P.C.

9. It is contended by the learned counsel for

appellants that after the arrest of the accused persons,

the alleged eye witnesses namely CWs.3 and 4 have not

identified them. He has contented that there are

contradictions in their statements recorded under Section

164 of Cr.P.C. It is further contended that the names of

other accused persons except accused No.1 are not in

the First Information Report and similarly placed accused

No.6 has been enlarged on bail by the Sessions Court. It

is also contended that CWs.1 and 2 cannot be the eye

witnesses since they have come to the scene of offence

after they were informed by CW.3.

10. The learned counsel for appellants has

contended that the above as well as other various

grounds were urged before the learned Special Judge.

However, without adverting to any of the contentions

raised, the learned Sessions Judge has mechanically

passed the order rejecting the prayer seeking bail. He

submits that the liberty of the appellants has been

curtailed in view of their detention in judicial custody.

11. Learned High Court Government Pleader on

the other hand has contended that the offence

committed is heinous in nature and there being eye

witnesses to the incident in question, the learned Special

Judge has rightly rejected the prayer seeking bail. He

submits that there is threat to the witnesses from the

accused and therefore it is not a fit case to enlarge the

appellants on bail.

12. It is well settled that the primary

considerations which must be placed at balance while

deciding the grant of bail are:

      (i)     the seriousness of the offence;

      (ii)    the likelihood of the accused fleeing from

              justice;

(iii) the impact of release of the accused on the

prosecution witnesses;

(iv) likelihood of the accused tampering with

evidence.

But, at the same time, the Court has to come to a

reasonable conclusion as to whether there is any prima

facie or reasonable ground to believe that the accused

has committed the offence, followed by the nature and

gravity of the charge and severity of the punishment.

Certain important factors relating to prima facie

involvement of the accused have to be considered,

though no detailed discussion regarding merits of the

case is required. Where a Court considering an

application for bail fails to consider the relevant factors,

an appellate Court may justifiably set aside the order.

Bail orders either granting or refusing cannot be passed

in a mechanical manner or by a cryptic order, without

considering the material aspects of the case. Court is

duty bound to give reasons for granting or denying bail,

especially in cases involving serious offences.

13. I have perused the order passed by the

Special Court rejecting the petition seeking bail filed

under Section 439 of Cr.P.C. The impugned order falls

short of such reasoning for dismissing the bail petition.

The learned Special Judge has not adverted to the

various contentions stated to have been raised by the

appellants counsel, except stating that accused are

alleged to have committed a brutal murder of deceased

and a prima facie case is made out against the accused

etc. When a bail petition is filed, the Court is bound to

take into consideration all the contentions raised and

pass an appropriate order. It is necessary to look into

the material on record which prima facie connects the

accused with the crime and adverting to those materials,

Court can come to the conclusion as to whether a prima

facie case has been made out or not and shall assign

reasons for either allowing or rejecting a bail petition.

The learned special Judge has failed to advert to the

various contentions said to have been raised by the

Counsel appearing for the accused before the trial Court.

The reasons for rejecting the prayer for bail does not

appear to be in accordance with law. In that view of the

matter the impugned order passed by the trial Court is

not sustainable in law. Accordingly, the following

ORDER

The order dated 25.11.2021 passed by the Court of

LXX Additional City Civil and Sessions Judge and Special

Judge, at Bengaluru in Special Case No.1752/2021 is

hereby set aside.

The learned Sessions/Special Judge shall hear the

parties concerned afresh and pass orders on the bail

application, in accordance with law, as expeditiously as

possible.

The public prosecutor is permitted to file statement

of objection.

The appeals are disposed of accordingly.

Sd/-

JUDGE

HB/-