Dhanraj Salyan @ Dhanu Kola vs State Of Karnataka
2023 Latest Caselaw 7264 Kant

                            1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 13TH DAY OF OCTOBER, 2023

                         BEFORE

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                 CRL.P.No.5587/2023

BETWEEN:

DHANRAJ SALYAN @ DHANU KOLA
S/O RAGHU SALYAN
AGED ABOUT 30 YEARS
R/AT UMAVATHI NILAYA
NEAR YASHASWINI ICE PLANT
KOLA, MALPE, KODAVURU VILLAGE
UDUPI TALUK - 576 103.                    ...PETITIONER

(BY SRI CHANDRASHEKAR R.P, ADV.)

AND:

STATE OF KARNATAKA
BY UDUPI TOWN POLICE STATION
UDUPI DISTRICT, REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001.                        ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJEGE, SPP-II A/W
    SMT. SOWMYA R, HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 CR.PC PRAYING TO ENLARGE THE PETITIONER ON BAIL
IN CR.NO.25/2019 OF UDUPI TOWN P.S., UDUPI DISTRICT
FOR THE OFFENNCE P/U/S 384, 387, 504, 506, 507, 201, 109,
120B, 364A, 397 R/W 34 OF IPC AND SEC.3(1)(ii), 3(2), 3(4),
3(5) OF KCOCA ACT, PENDING ON THE FILE OF PRINCIPAL
DISTRICT AND SESSIONS JUDGE, MYSURU IN SPL.C.
NO.366/2019.

     THIS PETITION HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY,
THE COURT MADE THE FOLLOWING:
                               2

                         ORDER

1. Accused no.5 in Spl.C.No.366/2019 pending before

the Court of Prl. District & Sessions Judge, Mysuru, for

the offences punishable under Sections 384, 387, 504,

506, 507, 120B, 109, 201, 364A, 397 read with 34 of IPC

and Sections 3(1)(ii), 3(2), 3(4) & 3(5) of the Karnataka

Control of Organized Crimes Act, 2000 (for short,

'KCOCA'), arising out of Crime No.25/2019 registered by

Udupi Town Police Station, Udupi District, is before this

Court under Section 439 Cr.PC.

2. Heard the learned Counsel for the parties.

3. It is the case of the prosecution that one Rathnakar

D.Shetty S/o Dhumanna Shetty had appeared before the

Station House Officer, Brahmavara Police Station and

submitted a typed complaint on 14.03.2019 seeking

action against a person who had called him from mobile

phone No.9742477467, and on the basis of the said

complaint initially NCR was registered. Later, on

15.03.2019, after obtaining necessary orders from the

jurisdictional Magistrate at about 3.00 p.m., FIR in Crime

No.42/2019 was registered against unknown persons for

the offences punishable under Sections 507, 504, 385,

506 IPC. The defacto complainant had averred in his

complaint that he was the Proprietor of Royal Soda

Factory and recently he had sold an immovable property

at Udupi. On 13.03.2019, the person who had called the

defacto complainant had scolded him in Tulu language

and had threatened him and his son with dire

consequences if he does answer his phone calls.

4. Later, on the point of jurisdiction, the case was

transferred to Udupi Town Police Station and FIR was

registered in Crime No.25/2019 for the aforesaid offences

on 21.03.2019. During the course of investigation of the

said case, petitioner was arrested on 22.03.2019 and he

was remanded to judicial custody. Investigation in the

case was completed and charge sheet was filed totally

against six accused persons for the offences punishable

under Sections 384, 387, 504, 506, 507, 120B, 109, 201,

read with 34 of IPC and Sections 3(1)(ii), 3(2), 3(4) &

3(5) of the KCOCA. A further charge sheet was filed on

30.12.2019 for the offences punishable under Sections

364A & 397 IPC. Petitioner's bail application filed before

the Trial Court in Spl.C.No.366/2019 was rejected on

10.07.2020. Therefore, he is before this Court.

5. Learned Counsel for the petitioner submits that the

material witnesses in the case viz., CWs-1 to 5 have not

referred to the role played by the petitioner in the

present case. Petitioner has been arrayed as accused

only based on the statement of CWS-45 & 47 and their

statements is not related to the allegations made in the

complaint of the present case. He submits that except

the offence under Section 387 IPC, the maximum

punishment for all other offences is seven years. Accused

no.4 as against whom similar allegations are made, has

been enlarged on bail by this Court in Crl.P.

No.3476/2023 disposed of on 29.09.2023. Petitioner is in

custody for the last more than 4 1/2 years. The offences

under Section 364A & 397 IPC is not applicable to the

petitioner and the petitioner is not a common accused

along with other accused persons in any one of the

earlier cases registered against the other accused

persons. The provisions of KCOCA has been wrongly

made applicable to the petitioner. In support of his

contention, he has placed reliance on the judgment of

the Hon'ble Supreme Court in the case of RANJITSING

BRAHMAJEETSING SHARMA VS STATE OF

MAHARASHTRA & ANOTHER - (2005)5 SCC 294.

6. Per contra, learned SPP has seriously opposed the

petition. He submits that petitioner has confessed about

his proximity with the other accused persons and he had

visited Hindalga Jail at Belagavi and handed over a SIM

Card to accused no.1 who was in jail and inturn accused

no.1 had called the complainant over his mobile phone by

using the said SIM Card. He further submits that the

confession statement of the accused is admissible under

Section 19 of the KCOCA. The call details of the petitioner

would go to show that he was in constant touch with the

other accused persons. The statement of CWs-45, 47 &

169 would go to show that the petitioner is a member of

the crime syndicate, of which the other accused persons

are also the members and they were indulged in

committing organized crimes. In support of his

arguments, he has placed reliance on the judgment in

the case of KAVITHA LANKESH VS STATE OF

KARNATAKA & OTHERS - (2022)12 SCC 753.

7. Petitioner is said to have been involved totally in

three cases prior to he being charge-sheeted in the

present case. Crime No.48/2009 was registered by Malpe

Police Station, Udupi District, for the offences punishable

under Sections 143, 147, 323, 324, 506, 504 read with

149 IPC, and in the said case he was acquitted on

13.01.2011. Crime No.115/2010 was registered by Malpe

Police Station, Udupi District, for the offences punishable

under Sections 143, 147, 323, 324, 504, 506 read with

149 IPC, and in the said case he was acquitted on

11.11.2011. Crime No.145/2019 was registered against

the petitioner by Malpe Police Station, Udupi District, and

the said case is pending before the jurisdictional Sessions

Court after committal in S.C.No.41/2019 and the

petitioner is charge-sheeted for the offence under Section

307 IPC in the said case. In none of the above three

cases, the other accused in the present case are co-

accused with the petitioner. Except the present case, the

petitioner is not involved in any other case as co-accused

with the other accused involved in the present case.

8. In the present case, none of the charge-sheet

witnesses in their statement have referred to the part

played by the petitioner in committing the crime. CW-45

has stated in his statement recorded under Section 161

Cr.PC that the petitioner herein along with accused no.3

and another had demanded money from him and he had

paid a sum of Rs.20,000/- to them. CW-47 has stated

that accused no.3 along with petitioner came to him

demanding money and he has paid a sum of Rs.5 lakhs

to accused no.3. CW-169 has stated that petitioner had

come near his office along with accused no.3 and others

and had made a demand for payment of money, but he

had not paid any amount to them. The alleged demands

made to CWs-45, 47 & 169 has nothing to do with CW-1

who is the complainant in the present case. In so far as

the demands made to CWs-45, 47 & 169, no complaint

was lodged by them and it is only pursuant to the

complaint lodged by CW-1, during the course of

investigation, their statement has been recorded by the

Investigation Officer. Solely based on the statement

made by these witnesses, it becomes doubtful whether

petitioner could be connected to the crime in the present

case.

9. The only other allegation against the petitioner is

that he had accompanied accused no.3 to Hindalga Jail at

Belagavi and they had handed over a SIM Card to

accused no.1 in the jail. Accused no.1 had allegedly used

the said SIM Card for the purpose of calling the

complainant - CW-1 and threatening him with dire

consequences if the extortion money is not paid.

10. Learned SPP has strenuously contended that since

the provisions of KCOCA have been invoked against the

accused persons in the present case, the petitioner

cannot be granted bail in view of Section 22(4) of the

KCOCA. Therefore, it could be relevant to quote certain

provisions of KCOCA which are material for consideration

of this bail application.

"Section 2(d) "Continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheet have been filed before a competent Court within the

preceding period of ten years and that Court has taken cognizance of such offence;

Section 2(e) "Organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;

Section 2(f) "Organized crime syndicate", means a group of two or more persons who acting either singly or collectively, as a syndicate or gang, indulge in activities of organized crime;"

"Section 22(4) Notwithstanding anything contained in the code no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on own bond, unless-

(a) The Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) Where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."

11. In Ranjitsing's case supra, the Hon'ble Supreme

Court which was considering the rigor of similar

provisions in paragraphs 36 to 38 and 46, has observed

as under:

"36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?

37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.

38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Penal Code, 1860 may debar the court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his

having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.

46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby."

12. In the case of CHENNA BOYANNA KRISHNA YADAV

VS STATE OF MAHARASHTRA & ANOTHER - (2007)1 SCC

242, the Hon'ble Supreme Court in paragraph 16 has

observed as under:

              "16.   At     this     stage,     it    is   neither
      necessary      nor     desirable         to    weigh    the

evidence meticulously to arrive at a positive finding as to whether or not the appellant has committed offences under Section 3(2) or Section 24 of MCOCA. What is to be seen is whether there is a reasonable ground for believing that the appellant is not guilty of the two offences, he has been charged with, and further that he is not likely to commit an offence under MCOCA while on bail. As noted above, the circumstance which has weighed with the High Court to conclude that the appellant had the knowledge of the organised crime syndicate of Telgi, printing fake stamps, etc. and these were being sold under the protection of the appellant and hence he had abetted an organised crime, is the alleged conversation between him and Telgi in January 1998, after the kidnapping incident. In our view, the alleged conversation may show the appellant's acquaintance with Telgi but may not per se

be sufficient to prove the appellant's direct role with the commission of an organised crime by Telgi, to bring home an offence of abetment in the commission of organised crime falling within the ambit of Section 3(2) of MCOCA and/or that he had rendered any help or support in the commission of an organised crime whether before or after the commission of such offence by a member of an organised crime syndicate or had abstained from taking lawful measures under MCOCA, thus, falling within the purview of Section 24 of MCOCA. It is true that when the gravity of the offence alleged is severe, mere period of incarceration or the fact that the trial is not likely to be concluded in the near future either by itself or conjointly may not entitle the accused to be enlarged on bail. Nevertheless, both these factors may also be taken into consideration while deciding the question of grant of bail."

13. In the case of MAHANTESH VS STATE OF

KARNATAKA & ANOTHER - 2022(3) KLR 184, wherein

identical allegation was made against the accused

regarding supply of SIM Card to an accused in the jail, a

coordinate bench of this Court in paragraphs 7 & 17 has

observed as under:

"7. It is alleged that the petitioner was working as a Jail Warder at Hindalga Central Prison, Belagavi and knowing very well that the accused have committed a heinous offence and they are members of an organized crime syndicate and members of a 'Tiger Gang', provided a black colour Samsung android mobile phone with SIM No.7259940446 to accused Nos.1 and 2, who were lodged in the prison, to help them to destroy evidence and to collect amount from their associates for the purpose of their bail.

         17.     In     the    case       of   Ranjitsing
Brahmajeetsing           Sharma       Vs.      State     of

Maharashtra and another reported in 2005 AIR SCW 2215, relied on by the learned senior counsel, at paragraph 30, the Hon'ble Apex Court has held as under:

"30. The interpretation clause as regard the expression 'abet' does not refer to the definition of abetment as contained in Section 107 of IPC. It refers to such meaning which can be attributed to it in the general sense with grammatical variations and cognate expressions. However, having regard to the cognate meaning, the term may be read in the light of the

definition of these words under Sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, "communication" or "association" must be read to mean such communication or association which is in aid of or render assistance in the commission of organized crime. In our considered opinion, any communication or association which has no nexus with the commission of organized crime would not come within the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes

(a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate. Communication to, or association with, any person by itself, as was contended by Mr. Sharan, would not, in our considered opinion, come within meaning of the aforementioned provision. The communication or association must relate to a person.

Such communication or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organised crime syndicate. Thus, the offence under Section 3(2) of MCOCA must have a direct nexus with the offence committed by an organised crime syndicate. Such abetment of commission of offence must be by way of accessories before the commission of an offence. An offence may be committed by a public servant by reason of acts of omission and commission which would amount to tampering with the investigation or to help an accused. Such an act would make him an accessory after the commission of the offence. It is interesting to note that whereas Section 3(2) having regard to the definition of the term 'abet' refers directly to commission of an offence or assisting in any manner an organised crime syndicate, Section 24 postulates a situation where a public servant renders any help or support both before or after the commission of an offence by a member of an organised crime

syndicate or abstains from taking lawful measures under this Act."

14. In the instant case, the only allegation against the

petitioner is that he had accompanied accused no.3 to

Hindalga Jail at Belagavi and had handed over a SIM

Card to accused no.1 bearing No.9964917807 which

allegedly was used by accused no.1 to call the

complainant and threaten him. It is not the case of the

prosecution that the petitioner was in any way otherwise

involved in the alleged crime committed by the other

accused persons in the present case. The said SIM Card

is undisputedly not seized from the possession of the

petitioner herein.

15. Petitioner is in custody from 22.03.2019 and

almost for the last 4 1/2 years, he is behind the bars.

Prolonged period of incarceration of an accused is a

factor that needs to be considered by the courts while

considering the bail application of an accused. The

Hon'ble Supreme Court in the case of UNION OF INDIA

VS K.A.NAJEEB - (2021)3 SCC 713, in paragraph 12 to

15, has observed as under:

"12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156] , Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.

13. We may also refer to the orders enlarging similarly-situated accused under UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra [Angela Harish Sontakke v. State of Maharashtra, (2021) 3 SCC 723] . That was also a case

under Sections 10, 13, 17, 18, 18-A, 18-B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43-D(5) of the UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra [Sagar Tatyaram Gorkhe v. State of Maharashtra, (2021) 3 SCC 725] , an accused under UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.

14. The facts of the instant case are more egregious than these two abovecited instances. Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27-11- 2020. Still further, two opportunities were given to the appellant NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co-accused who have been convicted, none have been given a sentence

of more than eight years' rigorous imprisonment. It can, therefore, be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two- third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.

15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39] , it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with

deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail."

16. In the present case, the prosecution has cited

totally 157 charge-sheet witnesses. The order sheet

maintained by the Trial Court in Spl.C.No.366/2019

would go to show that the case is still at the stage of

hearing before charge. Therefore, in the immediate near

future, the trial of the case is not likely to be completed.

17. A coordinate bench of this Court has granted

regular bail to accused no.4 in the present case in

Crl.P.No.3476/2023 disposed of on 20.09.2023. Accused

no.4 allegedly had participated in the crime by receiving

ransom money which was demanded by accused no.1. As

against the petitioner herein even such an allegation is

not found in the charge sheet. The coordinate bench of

this Court taking into consideration that accused no.4 is

in custody for the last more than 4 1/2 years and that

there are no serious allegations against him for having

kidnapped CW-158 and extortion of ransom except

receiving money, had granted regular bail to accused

no.4.

18. The judgment in Kavitha Lankesh's case supra

would not be applicable to the facts and circumstances of

the present case, since in the said case the Hon'ble

Supreme Court was considering the question whether the

High Court was justified in quashing the charge sheet

filed against the accused in so far as it relates to the

offences under the KCOCA. Having regard to the material

available in the said case, the Supreme Court had held

that even though there was no sufficient material to

attract the offence under Section 3(1) of the KCOCA,

since there was some material against the accused for

attracting the offences under Sections 3(2), 3(3) & 3(4)

of the KCOCA, the High Court was not justified in

quashing the charge sheet against the accused in the

said case in so far as it relates to the offences under the

KCOCA.

19. Considering the nature of material available against

the petitioner and also the allegations made in the charge

sheet, I am of the opinion that the petitioner who is in

custody for the last more than 4 1/2 years has made out

a prima facie case for grant of regular bail. In addition to

the same, the coordinate bench of this Court has

enlarged accused no.4 on regular bail in

Crl.P.No.3476/2023 as against whom there is allegation

in the charge sheet that he had collected ransom money,

but as against the petitioner even such an allegation is

not there. Under the circumstances, I am of the view that

the petitioner's prayer for grant of regular bail is required

to be answered in the affirmative. Accordingly, the

following order:

20. The petition is allowed. The petitioner is directed to

be enlarged on bail in Spl.C.No.366/2019 pending before

the Court of Prl. District & Sessions Judge, Mysuru, for

the offences punishable under Sections 384, 387, 504,

506, 507, 120B, 109, 201, 364A, 397 read with 34 of IPC

and Sections 3(1)(ii), 3(2), 3(4) & 3(5) of the Karnataka

Control of Organized Crimes Act, 2000 (for short,

'KCOCA'), arising out of Crime No.25/2019 registered by

Udupi Town Police Station, Udupi District, subject to the

following conditions:

a) Petitioner shall execute personal bond for a sum of Rs.1,00,000/- with two sureties for the likesum, to the satisfaction of the jurisdictional Court;

b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;

c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;

d) The petitioner shall not involve in similar offences in future;

e) The petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.

Sd/-

JUDGE

KK