Karnataka High Court

Poornachandra @ Poorna vs The State Of Karnataka on 8 December, 2023

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 08TH DAY OF DECEMBER, 2023

                         BEFORE

          THE HON'BLE MR. JUSTICE G BASAVARAJA

          CRIMINAL PETITION NO.9175 OF 2023

BETWEEN

1 . POORNACHANDRA @ POORNA
    S/O VENKATESH,
    AGED ABOUT 34 YEARS,
    R/O DEVINAGAR, NEAR SUNNADAGUDU,
    80 FEET ROAD,
    HASSAN CITY,

2 . SACHIN
    S/O SURESHA,
    AGED ABOUT 23 YEARS,
    BAKERY WORK,
    R/O MUTTALLI VILLAGE,
    KATTAYA HOBLI,
    HASSAN TALUK AND DISTRICT.

                                          ...PETITIONERS

(BY Sri SHASHWATH S PRAKASH, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REP BY PENSION MOHALLA POLICE STATION,
      HASSAN DISTRICT,
      REP BY HCGP,
      HIGH COURT OF KARNATAKA,
                                 2




     HIGH COURT BUILDING,
     BANGALORE-560001
                                                    ...RESPONDENT
(BY SRI M.R. PATIL, HCGP)

     THIS CRL.P FILED U/S 439 CR.PC BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HONOURABLE COURT
MAY BE PLEASED TO ENLARGE THE PETITIONERS ON REGULAR
BAIL IN CR.NO.51 OF 2022 REGISTERED BY THE PENSION
MOHALLA POLICE STATION, FOR THE OFFENCE P/U/S 37,
120(b), 109, 115, 212, 149, 302 R/W SEC. 34 OF IPC AND
AFTER COMMITTAL IN S.C.NO.249/2022, NOW WHICH IS
PENDING ON THE FILE OF THE III ADDL. DISTRICT AND
SESSIONS JUDGE, HASSAN.

     IN  THIS  PETITION, ARGUMENTS    BEING  HEARD,
JUDGMENT RESERVED ON 16.11.2023, COMING ON FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT MADE
THE FOLLOWING:

                            ORDER

This petition is filed under Section 439 of the Code of

Criminal Procedure, seeking the release of the petitioners on

Regular Bail in Crime No. 51 of 2022 registered by the Pension

Moholla Police Station. The alleged offences are punishable

under Sections 37, 120(b), 109, 115, 212, 149, 302 read with

Section 34 of the Indian Penal Code.

2. The brief facts of the petition are as follows:

The Police Inspector of the Homicide and Burglary Division,

CID, Carlton House, Palace Road, Bengaluru, submitted a charge

sheet against accused 1 to 12 for the commission of an offence

punishable under Section 302 read with Section 304 of the

Indian Penal Code.

3. Upon perusing the charge sheet, it reveals that accused

No.1, Poornachandra alias Poorna, and accused No.2, Sachin,

assaulted Prashanth Nagaraj on his right shoulder with a long

object. Subsequently, when Prashanth Nagaraj attempted to

escape from the grasp of accused Nos. 1 and 2, they pursued

him with the same object. Prashanth Nagaraj fell in front of the

house of Shivaram K B, where accused 1 and 2 continued their

assault on his neck, head, face, chest, hands, back, and

throughout his body, causing severe bleeding injuries, resulting

in the murder of Prashanth Nagaraj. Witnesses CWs.3 and 4

observed this alleged incident and are cited as eyewitnesses in

the charge sheet.

4. On behalf of petitioners 1 to 4, Criminal Petitions

No.1989 of 2023 c/w 2018 of 2023 under Section 439 of the

Code of Criminal Procedure, were filed before this Court. The

petition on behalf of petitioners 1 and 2 was rejected, whereas

the petition on behalf of petitioners 3 and 4 in Criminal Petitions

No.1989 of 2023, and on behalf of petitioner No. 8 in Criminal

Petition No. 2018 of 2023, was allowed.

5. The petitioners have now filed this successive bail

application based on fresh/ new grounds, seeking the release of

petitioners on bail.

6. Sri Shashwath S. Prakash, learned counsel representing

the petitioners, submits that according to the intimation provided

by the Medical Officer at HIMS, the Medical Register states

'brought-dead,' with information recorded by the Medical Officer

indicating an 'assault by 4 to 5 unknown individuals between

7:00 to 8:20 pm on 1st June 2022, near Javanahalli Matta,

Hassan'. This crucial aspect was completely disregarded by the

lower court.

7. Additionally, during the test identification parade

conducted on 22nd July 2022, the eyewitness, Anil alias Vasu, did

not identify the accused. Notably, Column No.4 of the inquest

explicitly states that Ragu and Anil were the last ones to have

seen the deceased alive. He submits that although Ragu's name

is included in the additional charge sheet, he has not been listed

as an eye-witness, and during his test identification parade, he

did not identify petitioners 1 and 2. Moreover, the ex-wife of

Petitioner No.1 affirmed, both in the police statement as well as

the statement made under Section 164 of the Code of Criminal

Procedure, that her deceased husband's name is Prashanth.

Following a mutual consent divorce with petitioner No.1, CW11-

Poornima is now the wife of the deceased Prashanth. Under

such circumstances, there is no motive involved, and this crucial

aspect was completely disregarded by the trial Court.

Furthermore, it is noteworthy that accused 3 to 12 have been

released on bail by this Court, and to date, there have been no

reports against the other accused, nor have they violated any

bail conditions. The petitioners maintain their innocence,

asserting that they are law-abiding citizens who have not

committed the alleged offence mentioned in the complaint. He

further submits that the petitioners have been falsely implicated

by the respondent police due to an ulterior motive for political

revenge, despite their lack of involvement in the alleged offence.

8. The learned counsel further submits that the entire

charge sheet is filed by the CID, not by the officer-in-charge of

the Police Station. Several judgments of this Court, as well as

the Hon'ble Apex Court, have considered this aspect for granting

bail on similar grounds. Therefore, the petitioners are entitled to

bail on this basis. Moreover, the complainant, in both her initial

and subsequent complaints, has only mentioned petitioner No.1

along with another person as being involved in the alleged

crime. However, statements given before the Investigating

Officer, as well as the statements made under Section 164 of the

Code of Criminal Procedure, contradict this claim. This

inconsistency suggests that the petitioners are falsely implicated

in the crime and thus deserve bail. Crucially, there are no eye-

witnesses to support the alleged offence against the petitioners.

Accused 1 and 2 have been in judicial custody since their arrest

on 9th June, 2022, and their family members depend entirely on

the income of the petitioners. Furthermore, there has been no

recovery of material evidence linking the petitioners to the

alleged crime. The investigation is concluded, and the petitioners

are not required for any further investigative procedures. Based

on all these grounds, we seek permission to allow the petition for

bail.

9. On the contrary, Sri M.R. Patil, learned High Court

Government Pleader appearing for the State, has filed objections

contending that the petitioners have not provided proper and

sufficient grounds in their petition. He argues that the petition

lacks merit both on factual and legal grounds. He further

emphasizes that the statements made by CR4-Anil and CW11-

Smt. Poornima under Section 164 of the Code of Criminal

Procedure indicate the involvement of the petitioners in

committing the offence. Additionally, he points out that the

petitioners had previously filed Criminal Petitions No.1989 of

2023 c/w 2018 of 2023, which were rejected by this Court on 2nd

May, 2023. Highlighting the background of the petitioners, he

asserts that Petitioner No.1 is a habitual offender, and Petitioner

No.2 is his cousin brother. Petitioner No.1 has been involved in

four criminal cases: SC No.49 of 2017, 105 of 2019, CC No.1459

of 2020, and 214 of 2022. While CC No.1459 of 2020 is pending,

he has been acquitted in the other cases. Furthermore, four

additional cases have been filed against him under Section 107

of the Code of Criminal Procedure, and the procedure is being

followed by the jurisdictional executive magistrate. Notably, a

rowdy-sheet was opened on 11th May, 2017, in Pension Moholla

Police Station, Hassan, against Petitioner No.1. Therefore, he

concludes that the material provided by the Investigating Officer,

along with the criminal antecedents of the petitioners, indicates

that the relief sought by the petitioners can't be considered at

this stage and prayed to reject the petition.

10. I have given my anxious consideration to the

arguments advanced by the learned counsel appearing for the

petitioner and the learned High Court Government Pleader.

11. The counsel representing the petitioners vehemently

argues that there was a significant delay of six hours in

submitting the First Information Report (FIR) to the Court. The

Investigating Officer reported that although the FIR was

dispatched from the Police Station at 00:30 hours on 2nd June

2022, it reached the Court at 06:30 am on the same day.

Notably, the Police Station is merely one furlong away from the

Court. However, the Investigating Officer failed to record any

statement from the person who submitted the FIR to the Court,

explaining the six-hour delay. Additionally, the Investigating

Officer recorded the statement of H.M. Manu on 15th June, 2022.

During the test identification parade, the Investigating Officer

did not present the accused to the witness, and the witness did

not participate in the identification parade. Another crucial

witness, Sri D.R. Nagaraj, a Police Constable, also did not

participate in the test identification parade. CW3-Raghavendra

and CW4-Anil, identified as eye-witnesses to the incident, did not

identify the accused during the test identification parade. Despite

being in judicial custody for over a year and three months,

petitioners are not required for any further investigation.

Moreover, the other two accused have already been released on

bail. The Investigating Officer produced the statements of CWs3

and 4 made under Section 164 of the Code of Criminal

Procedure. It is pointed out that both CWs3 and 4 are

considered interested witnesses. Furthermore, the eye-

witnesses who went to the hospital stated that about 4 to 5

unknown persons had assaulted the deceased without disclosing

the names of the present accused before the medical officer.

The counsel argues that the Investigating Officer, after

deliberation and discussions, falsely implicated the present

accused without attempting to secure the real culprit.

Additionally, it is highlighted that CW2-Smt. Bhagya, a practicing

Advocate, drafted the complaint and is the sister of the

deceased. However, CW2 did not disclose that CW3 is her

husband, while CW1 also did not reveal that CW2 is her sister-

in-law, instead listing her as a friend.

12. As against this, the learned High Court Government

Pleader submits that there are several materials to attract the

alleged offences against these accused. The Investigating

Officer has produced eye-witnesses before the Court and the

Court has recorded the statement of CWs3 and 4 under Section

164 Code of Criminal Procedure and therefore, the question of

participation of these witnesses in identification parade does not

arise. He, further submits that several cases have been

registered against accused No.1-Poornachandra. Further, he

submits that the deceased Prashanth Nagaraja was a convicted

accused and a rowdy-sheeter in SC No.35 of 2007. He had

served sentence of life imprisonment. In this regard, he has

produced the certified copy of judgment dated 30th July, 2010

passed in SC No.35 of 2007.

13. Having heard the learned counsel appearing for the

parties, the following points would arise for my consideration in

this petition:

1. Whether the bail application filed on behalf of petitioners 1 and 2 deserves to be allowed?

2. What order:

14. My answer to the above points would be as

under:

Point No.1: in the negative;

Point No.2: as per final order

Regarding Point No.1:

15. This Court, through an order dated 2nd May 2023, in

Criminal Petitions No.1989 of 2023 and 2018 of 2023, expressed

the view that there is a prima facie material indicating the

involvement of accused 1 and 2 in the murder of Prashanth

Nagaraj with long supported by eye-witnesses to the alleged

incident. Considering the nature and gravity of the offence, as

well as the facts and circumstances of the case, this Court

rejected the bail application filed on behalf of the present

petitioners.

16. Presently, the petitioners have filed a new bail petition,

citing several fresh grounds:

(i) There is a delay of six hours in submitting the First

Information Report to the Court, even though the

distance between the Police Station and the Home

Office is only one furlong.

(ii) The Investigating Officer has not recorded the

statement of the witness who submitted the First

Information Report to the court regarding the delay

of six hours in submitting the report.

(iii) Alleged eye-witnesses H.M. Manu and D.R.

Nagaraj, who work as Police Constables and are

said to be eye-witnesses to the incident, did not

participate in the test identification parade.

(iv) The Investigating Officer has produced statements

of CWs3 and 4 made under Section 164 of the Code

of Criminal Procedure, both of whom are

considered interested witnesses.

(v) Eye-witnesses who went to the hospital stated that

about 4 to 5 persons assaulted the deceased but

did not disclose the names of the accused before

the medical officer. Subsequently, after deliberation

and discussion, the Investigating Officer allegedly

falsely implicated these accused without attempting

to secure the real culprit.

(vi). CW2-Smt. Bhagya, who is the sister of the

deceased, is a practicing Advocate and drafted the

complaint. CW3 is the husband of CW2, but this

relationship is not disclosed by CW2. Additionally,

CW1 did not disclose that CW2 is her sister-in-law

and instead portrayed her as a friend.

17. On careful examination of material on record and the

statement of CW4-Anil and CW-11 Poornima, recorded by the

Magistrate, in my considered opinion, at this stage there are

prima-facie material to attract the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code. The

petitioners 1 and 2 are not entitled for bail on the basis grounds

urged in this petition.

18. At this stage, it is not proper for this Court to express

any opinion as to the delay in filing the First Information Report

to the Court and also the test identification parade conducted by

the Investigating Officer. Only after full-fledged trial, the Court

can consider the arguments advanced on behalf of the

petitioners. The alleged commission of offence is heinous in

nature and is punishable with death or imprisonment for life.

19. It is to be noted that, this Court, by a detailed order

on 2nd May, 2023 passed in filed Criminal Petitions No.1989 of

2023 c/w 2018 of 2023 which were rejected by this Court on

merits, no change of circumstances are pointed out. In the case

of KALYAN CHANDRA SARKAR v. RAJESH RANJAN ALIAS PAPPU

YADAV AND ANOTHER reported in (2005)2 SCC 42, it is held

that as long as there is material change in the fact situation

successive bail application could not be entertained. In the case

of STATE OF MADHYA PRADESH v. KAJAD reported in 2001(7)

SC 673, the Apex Court has observed as under:

".......successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier Judgment which is not permissible under Criminal Law....... ".

20. Considering the nature and gravity of offence and also

the antecedents of the petitioners 1 and 2, it is not just and

proper to allow this bail petition.

21. Therefore, for the reasons recorded hereinabove, this

petition must fail and it is accordingly dismissed. It is made clear

that observations contained in this order are for the purpose of

considering this bail application only.Hence, point No.1 is

answered in the negative.

Regarding Point No.2:

22. For the aforesaid reasons and discussions, I pass the

following: