Sri Raghavendra Kanchan @ ... vs State Of Karnataka
2023 Latest Caselaw 3768 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF JUNE 2023

                      BEFORE

 THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

         CRIMINAL PETITION No.4439/2023

BETWEEN:

SRI RAGHAVENDRA KANCHAN @ BARIKERI RAGHU
S/O BASAVA MARAKALA
AGED ABOUT 42 YEARS
RESIDING AT BELINAMANE
BARIKARE, KOTA, BRAHMAVARA TALUK
UDUPI DISTRICT - 576 213
PRESENTLY IN JUDICIAL CUSTODY.
                                     ... PETITIONER

(BY SRI SANDESH J. CHOUTA, SENIOR ADVOCATE FOR
    SRI JAGADEESHA B.N., ADVOCATE)

AND:

STATE OF KARNATAKA
THROUGH STATION HOUSE OFFICER
KOTA POLICE STATION
BENGALURU
REPRESENTED BY:
STATE PUBLIC PROSECUTOR
HON'BLE HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
                                       ... RESPONDENT

(BY SRI KIRAN S. JAVALI, SENIOR ADVOCATE FOR
    SRI K. NAGESHWARAPPA, HCGP)
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       THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C., PRAYING TO ORDER FOR THE RELEASE OF
THE PETITIONER ON REGULAR BAIL IN SC NO.11/2019 OF
KOTA POLICE STATION FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 120(B), 143, 147, 148, 449, 342, 504,
323, 324, 506, 307, 302, 212, 201 R/W SECTION 149 OF
I.P.C., PENDING ON THE FILE OF ADDL. DISTRICT AND
SESSION JUDGE UDUPI (SITTING AT KUNDAPURA) IN THE
INTEREST OF JUSTICE.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED    ON    23.06.2023   COMING    ON   FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT, MADE
THE FOLLOWING:

                         ORDER

I. BRIEF FACTS:-

The petitioner, who is accused No.9 in the

proceedings registered as FIR in Crime No.15/2019 has

sought for his release on regular bail in the proceedings

now numbered as S.C.No.11/2019 of Kota Police Station

for the offences punishable under Sections 120(B), 143,

147, 148, 449, 342, 504, 323, 324, 506, 307, 302, 212,

201 read with Section 149 of IPC pending on the file of

the Additional District and Sessions Judge, Udupi (sitting

at Kundapura).

2. It is made out from the facts that on the basis

of information, FIR came to be registered in Crime

No.15/2019, wherein the informant Lohith Poojari - PW1

had alleged that accused Nos.1 to 3 were attempting to

dig a latrine pit in their property which was abutting the

well within the property of the informant.

3. It is further alleged that in light of the attempt

made to dig the latrine pit by the accused Nos.1 to 3, the

informant had made representation to the Municipal body

and had restrained the work of the accused.

4. It is further stated that the accused Nos.1 to 3

were nursing a grudge due to restraint of the work of

digging a latrine pit and in light of the same had

allegedly conspired to do away with the life of the

informant. It is submitted that on 26.01.2019, at about

10.15 p.m., when the informant was returning to his

house, he had felt threatened. It is stated that he had

contacted his friends including the deceased and when

the informant's friends came to his house, accused Nos.1

to 3 alongwith other persons had attacked the informant

and his friends and inflicted blows to the deceased

(friends of the informant) leading to the death of Bharath

Kumar and Yatish.

5. In the FIR registered as Crime No.15/2019,

accused Nos.1, 2 and four other unknown persons were

arraigned as accused for the alleged offences under

Sections 143, 147, 148, 447, 341, 323, 302 read with

Section 149 of IPC.

6. The petitioner was apprehended on

07.02.2019 during the course of investigation on the

premise that the deceased were murdered at the

instance of the petitioner, attributing political rivalry

between the informant and deceased on the one side and

the petitioner on the other.

7. It is further made out from the facts as

narrated in the petition that subsequent to investigation,

the respondent Police had filed a chargesheet alleging

that the petitioner being the President of an Organization

"Barikeri Yuvaka Mandala" and the informant was

President of "Bhagatsingh Krantikari Balaga" and the

deceased were Members of the said Organization and

that both the said Organizations entertained political

rivalry. Accordingly, it was alleged that accused No.9,

the petitioner herein had conspired with the accused

Nos.1 to 3 to commit the murder of the deceased.

II. DETAILS OF PROCEEDINGS INITIATED BY THE PETITIONER SEEKING BAIL:-

8. The petitioner had filed a petition under

Section 439 of Cr.P.C. seeking regular bail in

Crl.P.No.2627/2019 which was allowed and petitioner

was enlarged on bail by order dated 16.07.2019.

9. The mother of the deceased Bharath Kumar

had challenged the said order1 in SLP (Crl.)

No.9561/2019, wherein the order granting bail came to

be set aside vide the order of the Apex Court dated

20.01.2020.

10. It is stated that the petitioner had voluntarily

surrendered before the trial Court on 07.02.2020, soon

thereafter.

11. It is submitted that the petitioner had moved

an application for being enlarged on bail under Section

439 of Cr.P.C. on 26.02.2020 before the learned

Sessions Judge and the learned Sessions Judge by order

dated 14.05.2020 had rejected the application for bail

observing that there are no changed circumstances,

while noting that once the Apex Court had rejected the

Crl.P.No.2627/2019

application, the Sessions Court would not re-visit the

matter.

12. It is to be noticed that subsequently the

petitioner had filed Crl.P. No.3098/2020 before this Court

seeking to be enlarged on bail and the same was

rejected by order dated 25.09.2020 while observing that

CW-2 - wife of the informant is a witness and that the

prosecution case rests heavily on the evidence of CW-2

to CW-9, who were eye-witnesses and who could be

prevailed upon at the instance of accused No.9 and

accordingly, it was observed that, it was not a fit case to

order for enlarging the petitioner on bail.

13. The petitioner approached the Apex Court in

SLP (Crl.) No.2198/2021 challenging the order passed in

Crl.P.No.3098/2020, which came to be disposed off vide

order dated 17.09.2021 as follows:-

"... We do not find any grounds to interfere with the judgment and order of the High Court impugned refusing to grant bail to the petitioner.

The special leave petition is, accordingly, dismissed.

We, however, direct that the trial should be completed within six months from date.

In the event, trial is not concluded within the time frame given by this Court, it will be open to the petitioner to renew his prayer for bail before the appropriate court. ..."

14. As the trial did not conclude within six months

as observed by the Apex Court, the petitioner moved

once again for bail by way of petition under Section 439

of Cr.P.C., before the learned Sessions Judge. However,

said application came to be rejected on 05.05.2023. The

learned Sessions Judge had observed that Apex Court

had rejected bail applications filed earlier considering all

grounds and accordingly, no special ground was made

out by accused No.9 to grant bail, especially when there

were serious allegations made against him and other

accused persons.

15. Subsequent to the said order, the present

petition before this Court has been filed by the petitioner

seeking to be enlarged on bail.

III. CONSIDERATION :-

16. Both sides have argued at length advancing

various contentions.

17. Though the Apex Court2 had set aside the

order enlarging the petitioner on bail on a subsequent

approach of the petitioner to the Apex Court against

orders rejecting the request for grant of bail, the Apex

Court in SLP (Cri) 2198/2021 has observed as follows:

in SLP (Cri) 9561/2019

"... We do not find any grounds to interfere with the judgment and order of the High Court impugned refusing to grant bail to the petitioner.

The special leave petition is, accordingly, dismissed.

We, however, direct that the trial should be completed within six months from date. In the event, trial is not concluded within the time frame given by this Court, it will be open to the petitioner to renew his prayer for bail before the appropriate court. ..."

The said order of the Apex Court was passed on

17.09.2021 and liberty was granted to the petitioner to

renew prayer for bail if trial was not concluded within six

months.

Accordingly, on the expiry of six months from

17.09.2021 that would be 17.03.2022, the petitioner was

permitted to renew the request for bail.

18. In the present case, the petitioner has waited

till the recording of evidence of CW.2 to CW.9 in light of

the observation made in Crl.P 3098/2020, thereafter on

06.05.2022 fresh application seeking bail came to be

filed and the same was rejected by the Sessions Judge

on 05.05.2023 and it is only thereafter that present

petition has been filed on 25.05.2023. Though as on date

witnesses upto PW.104 have been examined, the

evidence still remains to be concluded. In fact, on

07.06.2023 the matter was at the stage of consideration

of application under Section 311 of Cr.P.C., to recall the

witness and the matter has been adjourned to

05.07.2023.

19. It is clear that even after the lapse of one

year and three months the trial has not concluded.

20. As on date, in light of trial not having

concluded, the presumption of innocence still operates in

favour of the petitioner. The Apex Court in Satender

Kumar Antil v. Central Bureau of Investigation and

Another3 has observed that "The position in India is no

different. It has been the consistent stand of the Courts,

including this Court, that presumption of innocence,

being a facet of Article 21, shall inure to the benefit of

the accused..."

21. In light of the above, keeping in mind the

opportunity afforded by the Apex Court, petitioner's right

for consideration of his application to be enlarged on bail

prior to proceedings culminating in a judgment, is a vital

procedural right in light of presumption of innocence

being available prior to judgment and such right requires

to be honoured.

22. It must be noticed that; the petitioner has

been in custody for about 03 years 10 months, the

overt acts are imputed as regards the other accused, the

(2022) 10 SCC 51

allegations against the petitioner is only one of criminal

conspiracy, the accused no.8 against whom overt acts

were attributed has been enlarged on bail vide order

dated 02.12.2019 in Crl.P. No.7077/2019.

The investigation is complete as charge-sheet has

been filed and the witnesses have been examined, it is

only at the instance of the prosecution that the witness is

sought to be recalled. Clearly, all important witnesses

having deposed the threat of tampering of evidence and

threatening witnesses is not a point for consideration

disentitling the consideration of the petitioner on bail.

23. Insofar as possible threat to the witnesses are

concerned, such threat perception is only as regards

such of the witnesses who are recalled and could be

taken care of by imposing sufficient safeguards. In fact,

the first version of evidence and cross-examination of

the witnesses for prosecution has concluded and

accordingly, scope for retracting upon recall of the

witness will not have the effect of watering down the first

version. Even otherwise the recall of witness is not at

the instance of the petitioner, but by the prosecution.

24. It is also to be noted that the evidence insofar

as accused no.9 is concerned regarding his role in the

conspiracy is a matter to be established in trial.

25. Learned Senior Counsel appearing on behalf

of the petitioner would submit that insofar as the offence

of conspiracy made out, it must be noted that the

petitioner was not present at the spot of crime and heavy

reliance has been placed on the call records.

It is further submitted that however PW.64 has

admitted that he has lost his SIM Card and the

Investigating Authorities have relied on the call records

of PW.64 stating it to be that of accused no.1. Further, it

is the case that accused no.9/ petitioner herein has

conspired with accused no.1, which allegation cannot be

supported by call records of PW.64. Accordingly, it is

submitted that the proof of conspiracy is not backed by

the evidence, which needs to be taken note of while

deciding on the bail application.

It is also contended that the conspiracy was to do

away with the informant as per the case of the

prosecution which however did not materialize and it was

accomplices of the informant who were done to death

and accordingly, the imputation regarding conspiracy vis-

à-vis the deceased does not stand on firm footing.

It is further submitted that accused no.9/ petitioner

herein had called PW.102, the Investigating Officer, on

26.01.2019 requesting for investigation into the murder

of two persons and accordingly, the involvement of the

petitioner in the alleged conspiracy is doubtful.

In light of such contentions raised, it is clear that

the imputation regarding conspiracy is a matter that

could be brought out only during trial and there could be

no pre-judging of petitioner's role at this stage. In the

absence of imputation of overt acts and also noticing that

accused no.8 against whom there is an imputation of

overt act has been enlarged on bail, taking a prima facie

view, petitioner is entitled to be enlarged on bail.

Though evidence has been recorded of majority of

important witnesses, appreciation of such evidence ought

to be avoided in the present summary proceedings to

avoid prejudicing the proceedings before the trial court

which is at an advanced stage.

26. The petitioner cannot be stated to be a flight

risk as the trial is at the stage of completion and the

petitioner is an elected member of the Zilla Panchayat.

27. It must be noted that merely because the

petitioner is an Elected Member of Panchayat Raj

institution by itself may not be a embargo against

considering his right to be enlarged on bail at the

advanced stage of trial when deposition of the important

witnesses is completed.

28. The aspect that he was a rowdy-sheeter has

been discussed by this court in Crl.P No.2627/2019 and

in light of the important witnesses deposition having

been recorded, the threat perception also could be taken

note of by imposing conditions.

29. In the result, the bail petition filed by the

petitioner under Section 439 of Cr.P.C., is allowed and

the petitioner is enlarged on bail in S.C.No.11/2019 of

Kota Police Station for the offences punishable under

Sections 120(B), 143, 147, 148, 449, 342, 504, 323,

324, 506, 307, 302, 212, 201 read with Section 149 of

IPC pending on the file of the Additional District and

Sessions Judge, Udupi (sitting at Kundapura) subject to

the following conditions :

(i) The petitioner shall execute a personal bond of 1,00,000/- (Rupees one Lakh only) with one surety for the likesum to the satisfaction of the concerned Court.

(ii) The petitioner shall fully co-operate for the expeditious disposal of the trial.

(iii) The petitioner shall not tamper with evidence, influence in any way any witnesses.

(iv) In the event of witnesses being recalled upon request the jurisdictional police to provide protection on the dates of hearing where the witness attends the Court to adduce evidence.

(v) In the event of change of address, the petitioner to inform the same to the concerned SHO.

(vi) Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail.

(vii) The petitioner shall not indulge in any criminal activities of like nature.

(viii) The petitioner is restrained from moving out of the Udupi District till conclusion of trial, without permission from the concerned court.

Any observation made herein shall not be taken as

an expression of opinion on the merits of the case.

Sd/-

JUDGE

VGR/Np