Karnataka High Court

Smt Kusumanjali D vs Sri Vinay R S on 4 January, 2023

Bench: M G Uma

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                                                   CRL.P No. 10649 of 2022




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 4TH DAY OF JANUARY, 2023

                                         BEFORE
                            THE HON'BLE MRS JUSTICE M G UMA
                          CRIMINAL PETITION NO. 10649 OF 2022
                 BETWEEN:

                 SMT. KUSUMANJALI D.,
                 AGED ABOUT 29 YEARS,
                 D/O DEVI PRAKASH NAIDU S G,
                 R/AT NO.12, I FLOOR,
                 11TH MAIN, 3RD CROSS,
                 K.G.HALLI, ABBIGERE MAIN ROAD,
                 JALAHALLI WEST,
                 BANGALORE - 560 015.

                                                               ...PETITIONER
                 (BY SRI. KUMARASWAMY B N., ADVOCATE)
                 AND:

                 1.   SRI. VINAY R.S.,
                      AGED ABOUT 33 YEARS,
                      S/O SRIRAMULU,

Digitally        2.   SRIRAMULU,
signed by             AGED ABOUT 64 YEARS,
SUNITHA
GANGARAJU
Location: High   3.   SMT. LATHA SREERAMULU,
Court Of              W/O SREERAMULU,
Karnataka
                      AGED ABOUT 57 YEARS,
                      ALL ARE R/AT NO.59, 7TH MAIN, I CROSS,
                      DASARAHOSAHALLI LAYOUT,
                      DASARAHOSAHALLI,
                      DODDURKARAPANAHALLI, BANGARPET TALUK,
                      KOLAR DISTRICT,
                      D.K.HALLI POST - 563 162.

                 4.   STATE OF KARNATAKA,
                      (GANGAMMANAGUDI POLICE STATION),
                      BY THE LEARNED PUBLIC PROSECUTOR,
                      HIGH COURT OF KARNATAKA,
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                                               CRL.P No. 10649 of 2022




    AT BENGALURU - 560 001.

                                                          ...RESPONDENTS
(BY SRI.SHIVANANDA V N., ADVOCATE FOR R1 - 3;
    SRI.K.RAHUL RAI, HCGP FOR R4)

      THIS CRL.P. IS FILED U/S.439(2) OF CR.P.C PRAYING TO
DUE TO THE ABOVE MENTIONED GROUNDS, THE ANTICIPATORY
BAIL    ALREADY    GRANTED    U/S    438  CRPC    TO   THE
ACCUSED/RESPONDENTS NO.1, 2, 3 IN CRL.MISC.NO.9746/2022
IN THE COURT OF THE XLV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE (CCH-46) VIDE ORDER DATED 03.10.2022
MAY KINDLY BE RECALLED IN THE INTEREST OF JUSTICE AND
FAIR TRIAL OF THIS CASE.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:


                                    ORDER

The petitioner-complainant is before this Court

seeking cancellation of anticipatory bail granted to

respondents-accused Nos.1 and 3, by the XLV Additional City

Civil and Sessions Judge, Bengaluru (CCH-46), vide order dated

03.10.2022 passed in Crl.Misc.No.9746/2022, in Crime

No.98/2022 of Gangammana Gudi police station, registered for

the offences punishable under Sections 498A of the Indian

Penal Code (for short 'IPC') and Sections 3 and 4 of Dowry

Prohibition Act (for short 'D.P Act'), on the basis of first

information lodged by the informant -Kusumanjali D.

CRL.P No. 10649 of 2022

2. Heard Sri. Kumaraswamy B.N., learned Counsel for

the petitioner and Sri. Shivananda V.N., learned counsel for

respondent Nos.1 to 3, Sri. K.Rahul Rai, learned High Court

Government Pleader for the respondent No.4 -State. Perused

the materials on record.

3. Learned Counsel for the petitioner submitted that

respondent Nos.1 to 3 being accused Nos.1 to 3 were granted

anticipatory bail by the learned Session's Judge in

Crl.Misc.No.9746/2022 without taking into consideration

various instances referred to in the first information. He placed

reliance on the decision of Hon'ble Apex Court in the case of

Ms.Y Vs. State of Rajasthan and another 1, to contend

that if the relevant factors which would have to be taken into

consideration while dealing with the application for bail, have

not been taken note of or the bail is found to have granted on

irrelevant considerations, such order granting bail is to be

cancelled.

4. According to the learned counsel for the petitioner, the

informant has referred to several instances of cruelty meted by

(2022) 9 SCC 269

CRL.P No. 10649 of 2022

accused Nos.1 to 3, but none of those instances were referred

to by the learned Session's Judge in his order. Therefore, grant

of anticipatory bail, even in such serious circumstances calls for

interference by this Court by cancelling bail granted.

Accordingly, he prays for allowing the petition and to cancel the

anticipatory bail granted in favour of respondent Nos.1 to 3.

5. Per contra, learned counsel for respondent Nos.1 to 3

submitted that they were granted anticipatory bail after

considering the facts and circumstances of the case. The

learned Session's Judge discussed at length about the

seriousness of the offences and came to the conclusion that the

petitioners are entitled for grant of anticipatory bail. None of

the conditions imposed are violated by the

petitioners/respondents and therefore, the petition is liable to

be dismissed.

6. Learned High Court Government Pleader for

respondent No.4- State also opposing the petition submitted

that the learned Session's Judge considered the seriousness of

the offences and also taken note of the fact that only Section

498-A of IPC along with Sections 3 and 4 of D.P Act were

CRL.P No. 10649 of 2022

invoked against the accused. Valid reasons are assigned for

grant of anticipatory bail. The order is not perverse and the

respondents have not violated any of the conditions imposed by

the Court. Under such circumstances, anticipatory bail granted

in favour of respondents cannot be cancelled. Accordingly, he

prays for dismissal of the petition.

7. In view of the rival contentions urged by the

learned counsel for both the parties, the point that would arise

for my consideration is:

"Whether the respondents/accused Nos.1 to 3 are entitled for cancellation of bail under Section 439(2) of Cr.P.C.?"

My answer to the above point is in 'Negative' for the

following:

REASONS

8. The only ground urged by the learned counsel for the

petitioner is that, the learned Session's Judge has not referred

to any of the incidents referred to by the informant in the first

information. Therefore, the order granting anticipatory bail is

without any reason which calls for interference by this Court.

CRL.P No. 10649 of 2022

Learned counsel has placed reliance on the decision of Ms.Y's

case (supra) wherein, the Hon'ble Apex Court refers to an

order granting bail mechanically without any reason and

without referring to gravity of the offences committed by the

accused. It was observed by the Hon'ble Apex Court that

accused No.2 in the said case was a hard-core criminal with

nearly 20 criminal cases pending against him. When the High

Court granted bail in a mechanical manner, it was held that the

relevant factors should have been taken into consideration

while dealing with the application for bail, and the reason

should be well founded. The Hon'ble Apex Court also observed

that the High Court in the said case never taken into

consideration the actual facts of the case and there is no

reference to any of the factors which led to grant of bail. There

is no reasoning apparent from the impugned order. Under such

circumstances, it was held that the order granting bail is

required to be set aside.

9. In the present case, the informant lodged the first

information against accused Nos.1 to 3 making various

allegations of cruelty meted to her in her matrimonial house.

The first information runs into seven pages. It is pertinent to

CRL.P No. 10649 of 2022

note that only Section 498-A of IPC with Sections 3 and 4 of

D.P Act were invoked in the present case. The learned

Session's Judge assigned reasons for allowing the application

under Section 438 of Cr.P.C. as under:

"7. Point No.1: On considering the papers on record, it is evident to note that the Respondent Police have registered a Crime No.98/2022 against the Petitioners for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act on the Complaint of Smt. Kusumanjali, who is the W/o first petitioner. Admittedly the petitioner No.1 is the husband and petitioners No.2 and 3 are the relatives of the husband of the alleged complainant-Smt.Kusumanjali, which is not in dispute.

8. It is the case of the complainant that on 23.08.2018 the marriage of accused No.1 was solemnized with the complainant and at the time of marriage on demand he received gold articles as dowry from the parents of complainant. after the marriage the complainant started to reside along with the family of accused No.1, the accused persons subjected her to physical and mental cruelty in demanding additional dowry in terms of 30 X 40 measuring site at Bangalore. Unable to bear the physical and mental cruelty caused by the accused persons, complainant constrained to file complaint against the petitioners before respondent police.

CRL.P No. 10649 of 2022

9.The contention of petitioners is that they are innocent of the offences alleged and there is absolutely no case made out against them for the alleged offences. But, as pointed out by the earned Public Prosecutor, investigation is not yet completed, at this stage if the bail is granted in favour of the petitioners, then they abscond and also tamper the prosecution witnesses and hamper the investigation, and this stage when investigation is under progress, this Court cannot come to the conclusion that the petitioners are innocent of the offences alleged against them. Hence, at this stage the contention of petitioners that they are innocent of the offences alleged against them does not stand for consideration. It is not desirable on the part of this Court at this stage to come to the conclusion that the petitioners are innocent of the offences alleged against them.

10. It is pertinent to note that even for the sake of argument, it is accepted that there is prima-facie case against the Petitioners for the offence punishable U/s.498A of IPC and Sec.3 and 4 of DP Act, the said offences are not punishable with death or imprisonment for life. The offence U/s 498A of IPC is though non- bailable, but it is exclusively triable by the Magistrate.

11. It is well settled principle of law that the granting of bail is discretionary power of the Court and every case should be considered on the basis of facts of each case. The certified copies complaint and FIR produced by the petitioners discloses that a complaint has been lodged by the complainant- Smt. Kusumanjali, who is the wife of first petitioner at Gangammanagudi P.S., in

CRL.P No. 10649 of 2022

Crime No. 98/2022 on 24.09.2022 at 10.30 hours for an offences punishable Uls 498A of IPC and Sec. 3 and 4 of DP Act. The documents would disclose that there is a matrimonial dispute between first petitioner and the complainant. Admittedly, the petitioner No.1 is the husband and petitioners No.2 and 3 are the relatives of husband of the alleged Complainant-Smt.Kusumanjali, against whom the filing of the complaint is sufficient to draw apprehension in the minds of the petitioners regarding their arrest in non-bailable offence.

12. Whether the petitioners have committed the alleged offences as contended by the complainant is a matter, which has to be decided only at the time of full- fledged trial. At this juncture, when the petitioners are ready to abide by the terms and conditions imposed by the court and when they are ready to offer due and adequate surety for their release on bail, then this court is of the opinion that no purpose will be served by allowing the respondent police to apprehend the petitioners and to keep them in custody. The petitioners are the permanent residents as shown in the cause title and this fact has not been disputed by the prosecution. as such the presence of petitioners can be secured easily, hence, the question of absconding of the petitioners does not arise at all. The objections raised by the learned Public Prosecutor can be met by imposing stringent conditions. Absolutely there is no grounds made out by the prosecution to reject this bail petition. Hence, under these circumstances, the petitioners have made out sufficient ground for granting anticipatory bail in their favour at this stage as prayed for

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CRL.P No. 10649 of 2022

as there exist reason to believe that they may be arrested in non-bailable offences. Accordingly, I answer Point No.1 in the affirmative."

10. A reading of the portion of this order discloses that

the learned session's Judge has taken into consideration the

overall allegations made against the accused, the seriousness

of the offences and held that there are no reasons to reject the

application for anticipatory bail, as no purpose would be served

by allowing the respondent/police to apprehend the petitioners

and to keep them into custody. I do not find any perversity or

illegality in the order passed by the Court. It is not a cryptic

order without referring to the facts of the case or without

application of mind.

11. It is relevant to refer the decision of the Hon'ble

Apex Court in the case of Myakala Dharmarajam and Others

Vs. State of Telangana and another 2, wherein, the Hon'ble

Apex Court held in para No.9, which reads as under:

"9. Having perused the law laid down by this Court on the scope of the power to be exercised in the matter of cancellation of bails,

AIR 2020 Supreme Court 317

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CRL.P No. 10649 of 2022

it is necessary to examine whether the order passed by the Sessions Court granting bail is perverse and suffers from infirmities which has resulted in the miscarriage of justice. No doubt, the Sessions Court did not discuss the material on record in detail, but there is an indication from the orders by which bail was granted that the entire material was perused before grant of bail. It is not the case of either the complainant-Respondent No.2 or the State that irrelevant considerations have been taken into account by the Sessions Court while granting bail to the Appellants. The order of the Sessions Court by which the bail was granted to the Appellants cannot be termed as perverse as the Sessions Court was conscious of the fact that the investigation was completed and there was no likelihood of the Appellant tampering with the evidence.

10. The petition filed for cancellation of bail is both on the grounds of illegality of the order passed by the Sessions Court and the conduct of the Appellants subsequent to their release after bail was granted. The complaint filed by one Bojja Ravinder to the Commissioner of Police, Karimnagar is placed on record by Respondent No.2. It is stated in the complaint that the Appellants were roaming freely in the village and threatening witnesses. We have perused the complaint

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CRL.P No. 10649 of 2022

and found that the allegations made therein are vague. There is no mention about which accused out of the 15 indulged in acts of holding out threats to the witnesses or made an attempt to tamper with the evidence."

12. Therefore, it is clear that, unless there is no

perversity in the order passed by the trial Court and unless

proper grounds for cancellation of the bail are made out, the

bail once granted cannot be cancelled mechanically. The Court

while deciding the question as to whether the accused is or is

not entitled for grant of bail or anticipatory bail is required to

consider the nature and seriousness of the allegations made

against him. The conduct of the accused and his criminal

antecedents are also to be taken into consideration. It has to

consider the pros and cons of granting or rejecting bail or

anticipatory bail as the case may be. But it is irrelevant to refer

to each instances alleged in the first information and form an