Karnataka High Court
Shri Bhimarao Alias Tammanna S/O Laxman ... vs The State Of Karnataka on 6 June, 2024
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CRL.P No. 101612 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL PETITION NO. 101612 OF 2024 (439)
BETWEEN:
SHRI. BHIMARAO ALIAS TAMMANNA
S/O. LAXMAN CHAVAN,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: KODAGANOOR, TQ: ATHANI,
DIST: BELAGAVI - 591 304.
...PETITIONER
(BY SRI. SHEKHARGOUDA NAGANURI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH INSPECTOR,
ATHANI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
S.P.P OFFICE, HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
CHANDRASHEKAR ...RESPONDENT
LAXMAN
KATTIMANI
(BY SRI.PRAVEENA Y. DEVAREDDIYAVARA, HCGP)
HIGH THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
COURT OF
KARNATAKA SEEKING TO SER ASIDE THE ORDER DATED 22.02.2024 AND ALLOW
THIS CRIMINAL PETITION AND PASS AN ORDER TO RELEASE THE
PETITIONER (ACCUSED NO.2) ON BAIL U/SEC. 439 OF CR.P.C. IN
ATHANI P.S. CR.NO.150/2017 ON THE FILE OF THE VII ADDL.
DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT CHIKKODI
IN S.C.NO.303/2019 OFFENCES PUNISHABLE U/S 307, 323, 367,
504, 109 R/W 34 OF IPC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 101612 of 2024
ORDER
Heard Sri.Shekhargouda Naganuri, learned counsel
for the petitioner and Sri. Praveena Y. Devareddiyavara,
learned HCGP for the respondent-State.
2. The petitioner/accused No.2 is seeking regular
bail in Crime No.150/2017 of Athani Police Station,
pending on the file of VII Addl. District and Sessions
Judge, Belagavi sitting at Chikkodi for the offences
punishable under Sections 307, 323, 367, 504, 109, R/w
34 of IPC.
Brief facts of the case:
3. It is the submission of the learned counsel for
the petitioner that the petitioner who is arraigned as
accused No.2 had obtained bail for the offences under
Sections 307, 323, 367, 504 and 109 R/w 34 of IPC. After
committal to the Sessions Court, after framing of the
charge, the matter was set down for evidence of the
prosecution witnesses. The petitioner remained absent due
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to some unavoidable circumstances on 09.11.2023.
Thereafter, again accused Nos.1 to 3 absent on
28.12.2023. On 30.01.2024, the accused No.2 present.
However, accused Nos.1 and 3 are absent. NBW was
issued against accused Nos.1 and 3 through PSI. Again on
31.01.2024, the accused No.2 absent, warrant was issued
against accused No.2. On 22.02.2024, the present
petitioner is arraigned as accused No.2 and filed an
application for recalling the NBW issued against him.
However, the trial Court considering that the accused
misused the liberty granted to them and were remaining
absent and they were irregular to the Court. On rejecting
the application filed by him, the accused No.2 was taken
to the custody.
4. It is the submission of the learned counsel for
the petitioner that the trial Court committed error in taking
into the custody of the petitioner without canceling the bail
and the said order is contrary to the law laid down by the
Hon'ble Supreme Court in the case of Krishna Sharma
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Alias Krishna Kumar Sharma V/s State of West
Bengal and another. Therefore, the order of taking into
the custody dated 22.02.2024 required to be set aside and
the petitioner may be enlarged on bail.
5. Per contra, learned HCGP vehemently opposed
the bail petition filed by the petitioner and submitted that
the petitioner being accused No.2 along with other
accused were not regular to the Court and they have
violated the conditions imposed by this Court on several
occasions. In spite of opportunities having been given to
them, during the trial one or the other reason, the accused
were absent and tried to hamper the Court proceedings.
Therefore, the Trial Court rightly taken the petitioner to
the custody. Hence, the petition may be rejected.
6. Having heard the learned counsel for respective
parties and also perused the order sheet of the Trial Court,
it appears from the record that the petitioner being
arraigned as accused No.2 and remained absent on
31.01.2024 and on 22.02.2024, he had filed application
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for recalling the NBW. However, without canceling the bail,
the Trial Court rejecting the application for recalling the
warrant and taken the accused No.2 into the custody
which appears to be not proper. Before canceling the bail,
opportunity should have been given to the accused No.2 to
file the statement of objection regarding the absence.
While passing the order of taking into custody, the Courts
are required to be vigilant and cautious about the personal
life and liberty of the person guaranteed under the
constitution.
7. Now, it is relevant to refer the judgment of the
Hon'ble Supreme Court in the case of Krishna Sharma
stated supra in Crl.A.No.383/2024 dated 24.01.2024. The
Hon'ble Supreme Court in paragraph No.5 made the
following observations:
"However, we find that merely
because the appellant did not appear
personally could not have been a
ground for cancellation of bail. The
parameters for grant of bail and
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cancellation of bail are totally
different. The bail already granted
may be cancelled, if it is found that
the person who has been granted the
benefit of bail has violated any of the
conditions or misused the liberty by
influencing the witnesses or tampering
with the evidence."
8. On reading of the above said paragraph, the
bail already granted may be cancelled if it is found that the
person who has been granted the benefit of bail has
violated any of the conditions or misused the liberty by
influencing the witnesses or tampering the evidence.
Merely, because the accused did not appear personally on
one single day, could not be a ground to take the accused
to the custody.
9. Having considered the dictum of Hon'ble
Supreme Court and also order passed by the Trial Court, it
is appropriate to grant him bail by imposing suitable
conditions.
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10. Hence, I proceed to pass the following:
ORDER
The petition is allowed.
The petitioner is ordered to be enlarged on bail in
Crime No.150/2017 of Athani Police Station, on executing
a personal bond in a sum of Rs.1,00,000/- (Rupees One
lakh only) with one surety for the likesum to the
satisfaction of the Trial Court, subject to the following
conditions:
a) The petitioner shall not threaten or tamper
the prosecution witnesses nor hamper the
proceedings of the Court.
b) The petitioner shall not leave the
jurisdiction of the Court till disposal of the
case.
c) The petitioner shall appear before the Trial
Court on all dates of hearing without fail.
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d) In case, if he fails to appear with a
genuine reason and exemption application if
any is filed through his counsel, the said
application may be considered by the Trial
Court.
Sd/-
JUDGE
RKM
CT:ANB
