Prakash S/O Basavaraj Udagi vs The State Of Karnataka
2023 Latest Caselaw 782 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH
       DATED THIS THE 12TH DAY OF JANUARY, 2023
                       BEFORE
       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
         CRIMINAL PETITION No.201262/2022
                         C/W
        CRIMINAL PETITION NO.201299/2022
         CRIMINAL PETITION No.201453/2022

IN CRIMINAL PETITION NO.201262/2022
BETWEEN:
PRAKASH S/O BASAVARAJ UDAGI
AGE: 38 YEARS OCC: AGRICULTURE
R/O: H.NO.1-170, JEWALAGI (D),
TQ: ALAND DIST: KALABURAGI-585 302.    ... PETITIONER


(BY SRI. ASHOK MULAGE, ADVOCATE)


AND:


THE STATE OF KARNATAKA, THROUGH
POLICE STATION BAZAR P.S.
DIST: KALABURAGI,
REPT. BY ADDL. SPP HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585 107.              ... RESPONDENT


(BY SRI. KIRAN S. JAWALI, SPP AND
SRI. PRAKASH A. YELI, ADDL. SPP)


    THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CRIMINAL PROCEDURE CODE PRAYING TO ALLOW THE
PETITION AND RELEASE THE ACCUSED-PETITIONER ON BAIL IN
CRIME NO.57/2022 OF STATION BAZAR POLICE STATION
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KALABURAGI, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 120(B), 109, 201, 204, 409, 411 AND 420 READ
WITH SECTIONS 34, 36 AND 37 OF IPC IN C.C.NO.15193/2022,
PENDING ON THE FILE OF PRL. JMFC, KALABURAGI.

IN CRIMINAL PETITION No.201299/2022

BETWEEN:

CHANDRAKANTH S/O KHANDERAO KULKARNI
AGE: 60 YEARS OCC: INCOME TAX PRACTITIONER
R/O: BRAHMAPUR PLOT NO.1,
CHANDRASHREE BUILDING DARGA ROAD,
ATTAR COMPOUND,
KALABURAGI - 585 104.                  ... PETITIONER


(BY SRI. GANESH SUBASCHANDRA KALABURAGI, ADV.)

AND:

STATE OF KARNATAKA,
THROUGH PSI STATION BAZAAR POLICE STATION,
KALABURGI-585 102.
AND REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURGI BENCH-585 103.             ... RESPONDENT

(BY SRI. KIRAN S. JAWALI, SPP AND
SRI. PRAKASH A. YELI, ADDL. SPP)


    THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CRIMINAL PROCEDURE CODE PRAYING TO ALLOW THIS
PETITION AND DIRECT THE ACCUSED NO.2/PETITIONER BE
ENLARGED ON BAIL IN C.C.NO.15193/2022 ON THE FILE
PRINCIPAL CIVIL JUDGE AND JMFC, KALABURAGI ARISING OUT
OF CRIME NO.57/2022 REGISTERED WITH STATION BAZAAR
POLICE   STATION    KALABURAGI,   FOR   THE   OFFENCES
PUNISHABLE UNDER SECTIONS 120 (B), 109, 201, 204, 409,
411 AND 420 READ WITH SECTIONS 34, 36 AND 37 OF IPC.
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IN CRIMINAL PETITION NO.201453/2022

BETWEEN:


SHARANAPPA S/O SAIBANNA ITAGAR
AGE: 61 YEARS OCC: PRIVATE BUSINESS
R/O: RAJAPUR
KALABURAGI-585 105.                           ... PETITIONER


(BY SRI. VISHAL PRATAP SINGH, ADVOCATE)


AND:


THE STATE, THROUGH
STATION BAZAR P.S. KALABURAGI
REPRESENTED BY ADDL. SPP,
HIGH COURT,
KALABURAGI BENCH,
KALABURAGI-585 107.                          ... RESPONDENT

(BY SRI. KIRAN S. JAWALI, SPP AND
SRI. PRAKASH A. YELI, ADDL. SPP)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT THE
RELIEF OF REGULAR BAIL IN CRIME NO.57/2022 REGISTERED
BY THE STATION BAZAR POLICE STATION, KALABURAGI AND
CHARGED WITH OFFENCES PUNISHABLE UNDER SECTIONS 120
(B), 109, 201, 204, 409, 411 AND 420 READ WITH SECTIONS
34, 36 AND 37 OF THE IPC, PENDING BEFORE THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KALABURAGI.

       THESE    PETITIONS   COMING    ON   FOR    ORDERS   ON
07.12.2022     AND   THE   SAME   HAVING   BEEN   HEARD    AND
RESERVED FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE
COURT MADE THE FOLLOWING.
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                          ORDER

These petitions arise out of Crime No.57/2022 of

Station Bazar Police Station, Kalaburagi City, registered for

offences punishable under Sections 120 (B), 409, 420 read

with Sections 34, 36 and 37 of IPC.

02. Charge-sheet is filed against accused Nos.1 to

8 for offences punishable under Sections 120B, 109, 201,

204, 409, 411 and 420 read with Sections 34, 36 and 37

of IPC.

03. Petitioner in Crl.P.No.201262/2022 is accused

No.7, Petitioner in Crl.P.No.201299/2022 is accused No.2

and Petitioner in Crl.P.No.201453/2022 is accused No.4.

04. Petitioners have filed the respective petitions

under Section 439 of Cr.P.C. to enlarge them on bail.

05. Heard the learned counsel appearing for

petitioners and the learned SPP for respondent - State and

perused the material on record.

06. The aforementioned crime is registered on the

basis of a complaint lodged by the Dy.S.P, FIU Division,

CID Unit, Bengaluru. It is alleged that while investigating

the case in Crime No.48/2022 registered at Chowk Police

Station, Kalaburagi, accused by name Rudragouda s/o

Devendrappa Patil (accused No.1) confessed that at the

request of his tax consultant and auditor namely

Chandrakanth Kulkarni (accused No.2), he had helped a

candidate by name Prabhu (Accused No.3) in the PSI

examination conducted on 03.10.2021 at M.S. Irani

College Exam Centre by providing him the blue tooth

device. Further, during the interrogation of Chandrakant

Kulkarni (accused No.2), he confessed that he is

acquainted with accused No.1 since last 06 years and knew

that he gets candidates selected to various government

jobs by providing blue tooth devices to them in the exams

and Sharanappa Rajapur (Accused No.4) being acquainted

with him had requested to recommend the candidature of

his son Prabhu (Accused No.3), a B.Sc. graduate, who had

applied for selection to the post PSI. Further, the said

Chandrakant (Accused No.2) confessed that a week prior

to the examination, he discussed with accused No.1, about

the candidature of Prabhu (Accused No.3), who in turn

agreed to help him by providing blue tooth device, if

money is given to him. Thereafter, accused No.1 asked the

said Prabhu (Accused No.3) to give him 03 SIMS and 01

Mobile phone.

07. It is further alleged that accused No.3

forwarded the hall ticket copy to accused No.2 through

Whatsapp, informing the examination centre and the said

information was furnished to accused No.1. Thereafter, as

per the instructions of accused No.1, accused No.3

purchased 2 sim cards and also received the blue tooth

device supplied by accused No.1 and attended the

examination conducted for the recruitment of PSI with the

help of the blue tooth device and got selected to the post

of PSI. Thereafter, the amount was delivered to accused

No.1, wherein accused No.4/Sharanappa Rajapur was

about to give the amount of Rs.30 lakhs and another

amount of Rs.20 lakhs in cash to accused No.1/R.D.Patil.

08. It is alleged that all the accused entered into a

conspiracy, pursuant to which they helped an ineligible

candidate to pass the PSI examination and thereby

deprived the candidature of the eligible candidates and

cheated them etc.,

09. Petitioner/accused No.2 is alleged to be

working as a Tax Consultant and Auditor. He is said to

have requested accused No.1 to help accused No.3/Prabhu

in the PSI examination, as per the request of his father

i.e., accused No.4/Sharanappa and struck a deal with him.

He is alleged to have introduced accused Nos.3 and 4 to

accused No.1, consequent to which accused No.1 provided

the Bluetooth device, with the help of which accused No.3

wrote the PSI examination conducted on 03.10.2021 and

got illegally selected to the post of PSI. Further, it is

alleged that the cash was handed over to accused No.1.

10. Petitioner/accused No.4 is alleged to be

acquainted with accused No.2/Chandrakant Kulkarni and

requested him to recommend the candidature of his son

namely Prabhu/accused No.3, a B.Sc. graduate to get him

selected to the post of PSI, in turn accused No.2 discussed

the matter with accused No.1 and struck a deal. The

petitioner is alleged to have given money to accused No.1,

so that he would help in providing answers in the PSI

examination with the help of Bluetooth device. He is

alleged to have paid Rs.30 lakhs to accused No.1 initially

and after accused No.3 got selected to the post of PSI,

gave the balance amount of Rs.20 lakhs, as agreed.

11. Petitioner/accused No.7 is said to be a close

relative of accused No.1. He is alleged to have met

Accused No.1 two days prior to the PSI examination and

received an old Samsung mobile and a Airtel simcard from

him, provided by accused No.3 with a direction to hand

over the same to one Rahotappa. Further, it is alleged

that he was directed by accused No.1 to work as a

watchman to their candidates appearing in the

examination conducted at Gnanajothi English Medium

School and M.S.Irani Arts and Science College, Kalaburagi

and received a sum of Rs.50,000/- from accused No.1.

12. The learned counsel appearing for the

petitioners have contended that the petitioners are

innocent and they are falsely implicated, on the basis of

the alleged voluntary statement of co-accused No.1. It is

contended that the petitioners are arraigned as accused

without there being sufficient materials and vague

allegations are made against them. It is further contended

that the blue tooth devices alleged to have been given by

accused No.1 are not recovered, to substantiate the said

allegation. It is submitted that the offences alleged are

not punishable with death or imprisonment for life, the

petitioners are already arrested and interrogated and they

are not required for further interrogation/investigation and

their further detention in custody would amount to pre-

trial conviction. They submit that the petitioners are ready

and willing to furnish sufficient surety for their regular

appearance before the trial Court and will undertake to

abide by any reasonable conditions which may be imposed

on them.

13. The State has filed statement of objections

opposing grant of bail to the petitioners contending that all

the accused have entered into conspiracy and conjointly

committed a serious offence affecting the interest of the

Society at large. It is contended that there are sufficient

materials against the petitioners and a prima facie case is

made out against them and therefore, they are not entitled

for the relief sought.

14. The learned State Public Prosecutor has also

contended that the accused have spoiled the future of

genuine candidates and therefore, taking into

consideration the gravity of the offence and its impact on

the Society at large, the petitioners are not entitled for the

relief of bail.

15. The FIR is registered on a complaint by the

Dy.S.P., CID unit, Bengaluru, for offences punishable

under Sections 120B, 409, 420, 34, 36 and 37 of IPC

against accused Nos.1 to 4 and others. Charge-sheet has

been filed against accused Nos.1 to 8 for offences

punishable under Sections 120B, 109, 201, 204, 409, 411,

420, 34, 36 and 37 of IPC. It is alleged that while

investigating the case in Cr.No.48/2022 registered at

Chowk police station, Kalaburagi, the Investigation Officer

interrogated the main accused i.e., accused No.1 who

confessed to have helped a candidate by name Prabhu i.e.,

accused No.3. Accused No.2 is alleged to have introduced

accused No.3 and his father i.e., accused No.4 to accused

No.1, who subsequently provided the blue tooth device

and helped accused No.3 to pass the PSI examination. In

so far as accused No.7 is concerned, it is alleged that, as

per the direction of accused No.1, he worked as a

watchman to the candidates appearing for the examination

and received an old Samsung mobile phone and a Airtel

sim card from accused No.1 which was alleged to have

been provided by accused No.3 etc.,

16. As per the offences mentioned in the charge-

sheet separately against these petitioners, there is no

mention of Section 409 IPC. The allegations of receiving

money and providing blue tooth devices to help the

candidates in the PSI examination are against accused

No.1. The said accused is also involved in Cr.No.48/2022

of Chowk police station. According to prosecution, while

investigating the said case, they recorded the voluntary

statement of accused No.1, who revealed about the

involvement of other accused persons. The offences

alleged against the petitioners are punishable with

imprisonment upto 7 years. As per prosecution, CWs-4

and 5 are the witnesses for the seizure of 2 mobile phones

from accused Nos.3 and 4 and also witnesses for the spot

where the blue tooth device was kept. CW-16 is said to

have shown the spot where the conspiracy was held

between accused Nos.1 and 2 and the spot where accused

No.4 is alleged to have given the money to accused No.1.

Further, prosecution relies on the statements of CWs-65

and 66 with regard to selling of a plot by accused No.4 and

also obtaining hand loan by the said accused, for giving

the amount to accused No.1. The prosecution is also

relying on the account details of accused No.4.

17. The prosecution has to establish its case

against the petitioners in a full fledged trial. The accused

Nos.2 and 4 were arrested on 04.05.2022 and accused

No.7 was arrested on 01.06.2022. They have been

interrogated. The petitioners are not involved in other

crimes. They have no criminal antecedents.

18. In SANJAY CHANDRA VS. CENTRAL

BUREAU OF INVESTIGATION reported in (2012) 1 SCC

40, the Hon'ble Apex Court has set out certain parameters

for consideration of bail and it is held that gravity alone

cannot be the decisive ground to deny bail and competing

factors to be balanced by Court while exercising its

discretion. Para Nos.21 to 23 are extracted hereunder:

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson."

19. In the above judgment, the Hon'ble Apex Court

has referred to a case in MOTI RAM VS. STATE OF M.P

reported in (1978) 4 SCC 47, which reads as under:

"14. The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family."

20. The learned State Public Prosecutor has

vehemently contended that the allegations against the

accused persons are very serious which can be equated to

an economic offence of great magnitute, though the

offences alleged are punishable up to 07 years and not

punishable with death or imprisonment for life. Relying on

a judgment of the Hon'ble Apex Court in STATE OF

BIHAR AND ANOTHER VS. AMIT KUMAR ALIAS

BACHHA RAI reported in (2017) 13 SCC 751, he

contends that there is no straight jacket formula for

considering grant of bail to the accused and it all depends

upon the facts and circumstances of each case. He has

also relied on paragraph No.13 of the said judgment which

is extracted hereunder:

"13. We are also conscious that if any undeserving candidates are allowed to top exams by corrupt means, not only will the society be deprived of deserving candidates, but it will be unfair for those students who have honestly worked hard for one whole year and are ultimately disentitled to a good rank by fraudulent practices prevalent in those examinations. It is well settled

that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Usually socio- economic offence has deep rooted conspiracies affecting the moral fiber of the society and causing irreparable harm, needs to be considered seriously."

21. It is well settled that at the time of considering

an application for bail, the Court must take into account

certain factors such as existence of prima facie case

against the accused, the gravity of the allegations, position

and status of the accused, likelihood of accused fleeing

from justice and repeating offences and possibility of

tampering with witnesses as well as criminal antecedents

of accused. It is also well settled that Courts must not go

deep into merits of the matter while considering an

application for bail.

22. In SATENDER KUMAR ANTIL VS. CENTRAL

BUREAU OF INVESTIGATION AND ANOTHER (MISC.

APPLICATION No.1849/2021 in SLP (Crl)

No.5191/2021 dated 11.07.2022, referring to cases

pertaining to economic offences, it is observed by the

Hon'ble Apex Court at paragraph No.66 as under:

"66. What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with by this Court in the case of P. Chidambaram vs. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the Court to categorise all the offences into one group and deny bail on that basis."

23. Keeping in view the principles laid down in the

above decisions of the Hon'ble Apex Court and considering

the facts and circumstances of the case on hand, the relief

sought by the petitioners can be granted by imposing

suitable conditions, making it clear that if any material is

brought before the Court after release of the petitioners

that they are indulged in influencing the witnesses or

tampering the evidence etc., the prosecution would be at

liberty to seek cancellation of the bail granted to them.

24. Accordingly, the following:

ORDER

i) The petitions are allowed,

ii) The petitioners/accused Nos.2, 4 and 7 shall be enlarged on bail in Cr.No.57/2022 of Station Bazaar police station, Kalaburagi, subject to following conditions:

a) Petitioners shall execute a personal bond of Rs.2,00,000/- (Rupees two lakhs only) each, with two solvent sureties for the likesum to the satisfaction of the jurisdictional Court,

b) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them to disclose such facts to the Court or to any other authority,

c) They shall furnish proof of their residential address and their contact number and shall inform the Investigation Officer/Court if there is any change in the address or contact number,

d) They shall surrender their passport, if any, before the Court within 15 days from the date of receipt of copy of this order and in case they are not holding the passport, they shall file their affidavits, before the Court, stating so.

e) They shall not leave the jurisdiction of the trial Court without prior permission of the learned trial Judge, till disposal of the case or until further orders,

f) They shall appear before the trial Court on all dates of hearing, without fail.

g) They shall make available for the purpose of further investigation, if any.

h) They shall not indulge in any criminal activities.

If any of the above conditions are violated, the

prosecution is at liberty to seek cancellation of bail.

Sd/-

JUDGE

Kjj/Jm/-