Karnataka High Court

Ullas Shenoy @ Ullas vs The State Of Karnataka on 22 April, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                         NC: 2024:KHC:15885
                                                     CRL.P No. 1668 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 22ND DAY OF APRIL, 2024

                                            BEFORE

                             THE HON'BLE MR JUSTICE K.NATARAJAN

                             CRIMINAL PETITION NO. 1668 OF 2024

                   BETWEEN:

                         ULLAS SHENOY @ ULLAS
                         S/O VISHWANATH SHENOY,
                         AGED ABOUT 30 YEARS,
                         R/AT GOVERNMENT PU COLLEGE,
                         NEAR NARAYANA GURU BILLAVA,
                         SAMAJA SEVA SAMITHI, KOPPALLATHOTA,
                         MALPE, KODAVURU VILLAGE,
                         UDUPI DISTRICT-576101.

                                                                 ...PETITIONER
                          (BY SRI DINESHKUMAR RAO K, ADVOCATE)

                   AND:

Digitally signed   1.    THE STATE OF KARNATAKA
by V KRISHNA             BY UDUPI TOWN POLICE
Location:                UDUPI DISTRICT-576101
HIGH COURT
OF
KARNATAKA                REPRESENTED BY STATE PUBLIC PROSECUTOR,
                         HIGH COURT BUILDINGS, BENGALURU-560001.

                   2.    RATHNAKAR D SHETTY
                         S/O DHOOMANNA SHETTY,
                         AGED ABOUT 73 YEARS,
                         R/AT APARNA NIVAS,
                         K.G ROAD, UDUPI -576105.

                                                              ...RESPONDENTS
                          (BY SMT. ANITHA GIRISH, HCGP FOR R-1)
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                                             NC: 2024:KHC:15885
                                      CRL.P No. 1668 of 2024




     THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN SPL.C.NO.366/2019
PENDING ON THE FILE OF PRINCIPAL SESSIONS AND SPECIAL
JUDGE AT MYSURU (CHARGE SHEETED FOR THE OFFENCES
P/U/S 384,387,504,506,507,120(B),109,201 R/W 34 OF IPC
AND SEC.3(1)(ii),3(2),3(4),3(5) OF KARNATAKA CONTROL OF
ORGANIZED CRIMES ACT,2000, ETC.,

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

                            ORDER

This petition is filed by the petitioner/Accused No.6

under Section 439 of Cr.P.C., for grant of bail in Special

Case No.366/2019 pending on the file of Principal Sessions

Judge and Special Judge, Mysuru, arising out of Crime

No.25/2019 of Udupi Town Police Station, initially

registered the F.I.R for the offences punishable under

Sections 507, 504, 385 and 506 read with Section 34 of

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

Control of Organized Crimes Act, 2000 (in short 'the

KCOCA Act').

2. Heard the learned counsel for the petitioner,

learned High Court Government Pleader for the State and

also perused the statement of objections.

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3. The case of the prosecution is that on the

complaint of Sri.Rathnakar D.Shetty, Udupi town police

registered an F.I.R and after invoking the KCOCA Act, the

Police have filed the charge sheet before the Civil Court at

Mysuru. It is alleged by the complainant that he has

received a phone call on 13.03.2019 around 12.00 noon,

three times. A person speaking in Tulu, demanded money

and if he does not pay money, he threatened to kill him

and his son. The Police investigated the case and arrested

some of the accused persons and also this petitioner.

Thereafter, F.I.R was sent to the jurisdictional Magistrate.

The present petitioner was released on bail. Learned

Magistrate by invoking the provisions of Section 3 of

KCOCA Act, once again rejected the bail by invoking the

provisions of Section 437 (5) of Cr.P.C and cancelled the

bail granted to the petitioner on 22.03.2019. since then,

the petitioner is in judicial custody. Hence, the petitioner

is before this Court seeking bail.

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4. Learned counsel for the petitioner contended that

the Accused No.4 and Accused No.5 who are charged with

similar allegations are granted bail. Accused No.4 has been

granted bail by this Court in Criminal Petition

No.3476/2023 dated 20th September, 2023. The co-

ordinate Bench of this Court in Criminal Petition

No.5587/2023 dated 13th October, 2023, has granted bail

to Accused No.5. The present petitioner is in custody for

more than five years. Even as per Section 5 of the KCOCA

Act, minimum sentence prescribed is five years. The co-

ordinate Bench of this Court has granted bail to Accused

No.5 on the ground of parity. The present petitioner is

also entitled for grant of bail.

5. Learned counsel for the petitioner relied upon the

recent judgment of the Hon'ble Supreme Court reported in

(2021) 3 SCC 713 UOI VS K.A. Najeeb, wherein the

Hon'ble Supreme Court has granted bail to the accused

who was facing trial for the offence punishable under UAPA

Act, where the accused was in custody for long time.

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6. Per contra, learned High Court Government

Pleader contended that this petitioner and three other

accused persons who are habitual offenders, have tried to

extract money from the complainant threatening him and

his son that they would be killed if ransom amount is not

paid. Therefore, prayed for dismissal of the petition.

7. Having heard the arguments and perused the

records, especially, the charge sheet material placed on

record by the petitioner's counsel, where the allegation

against the Accused Nos.4 and 5 are one and the same,

i.e., extracting money from the complainant by

threatening with dire consequences. This Court granted

bail to Accused No.4 on 20th September 2023 and co-

ordinate Bench granted bail to Accused No.5 on 13th

October 2023 and thus, petitioner having been charged

with similar allegations, is in custody for 05 years 03

months.

8. Section 3 of KCOCA Act reads as under:

3. Punishment for organized crime -

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(1) whoever commits an organized crime shall, -

(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, which shall not be less than one lakh rupees.

(ii) In any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, which shall not be less than five lakh rupees.

(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organized crime or any act preparatory to organized crime, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, which shall not be less than five lakh rupees.

(3) Whoever harbors or conceals or attempts to harbor or conceal, any member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, which shall not be less than five lakh rupees.

(4) Any person who is a member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but

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which may extend to imprisonment for life and shall also be liable to a fine which shall not be less than five lakh rupees.

(5) Whoever holds any property derived or obtained from commission of an organized crime or which has been acquired through the organized crime syndicate funds shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to a fine, which shall not be less than two lakh rupees.

9. On perusal of Section 3 of KCOCA Act, minimum

punishment is five years, which may extend to life. For

the offence punishable under Section 387 Cr.P.C.,

maximum punishment prescribed is seven years. The

petitioner is in custody for more than five years. Half of

the sentence is already undergone by the petitioner. In

view of the provisions of Section 3 of the KCOCA Act, as

the petitioner has already undergone half of the sentence

and this Court has granted bail to Accused No.4 and the

co-ordinate Bench of this Court has granted bail to

Accused No.5, the present petitioner is also entitled for

grant of bail.

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10. Apart from that argument before charge cannot

be permitted and liberty of trial during detention cannot be

permitted to the petitioner. In a catena of Judgments of

Hon'ble Supreme Court, it has been held that where the

accused persons are under long detention, bail can be

granted by imposing stringent conditions.

11. 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.

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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."

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12. 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

co-ordinate 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

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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

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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."

13. 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:

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"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

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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."

14. The Hon'ble Supreme Court granted bail in the

said case with conditions. The coordinate bench also

granted bail in a similar case reported in 2020 SCC

online Karnataka 2307. The Hon'ble Supreme Court also

granted bail in Mukeshbhai Vallabhabahi Vs State of

Gujarat reported in (2023) 4 SCR 1137 in a similar

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case. Therefore, the present petitioner petitioner is also

entitled for grant of bail due to prolonged incarceration.

15. In the result, the following:

ORDER

Criminal Petition is allowed. The trial court is

directed to release petitioner - accused No.6 on bail in

Special Case No.366/2019 on the file of the Principal

Sessions Judge and Special Judge, at Mysuru, subject to

the following conditions:

(i) Petitioner-accused shall execute a personal bond

for a sum of Rs.5,00,000/- (Rupees Five Lakhs

only) with two sureties for the likesum to the

satisfaction of the trial court;