Karnataka High Court

Xxx vs State Of Karnataka By on 6 November, 2024

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                               NC: 2024:KHC:44604
                                                           CRL.P No. 7967 of 2024




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 6TH DAY OF NOVEMBER, 2024

                                              BEFORE
                          THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                               CRIMINAL PETITION NO.7967 OF 2024
                   BETWEEN:

                   XXX

                                                                     ...PETITIONER
                   (BY SRI NISHIT KUMAR SHETTY, ADVOCATE)

                   AND:

                   1.    STATE OF KARNATAKA BY
                         WOMEN POLICE STATION
                         MANGALORE
                         REPRESENTED BY STATE PUBLIC PROSECUTOR
                         HIGH COURT BUILDING
                         BENGALURU-560 001.

                   2.    VINOD RAJ
                         S/O. PUNDALEEKA POOJARY
                         AGED ABOUT 29 YEARS
                         R/AT D. NO.2-116, KOPPALA HOUSE
Digitally signed         SHAMBOOR POST, BANTWAL TALUK
by NANDINI               D.K. DISTRICT-574 231.
MS
                                                                   ...RESPONDENTS
Location: High
Court of
Karnataka          (BY SRI CHANNAPPA ERAPPA, HCGP, FOR R-1;
                       SRI ASHWIN JOYSTON KUTINHA, ADVOCATE FOR R-2)

                         THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2)
                   CR.P.C PRAYING TO CANCEL THE BAIL GRANTED TO THE
                   RESPONDENT NO.2 ON 16.07.2024 IN CRL.MIC.NO.550/2024 BY THE
                   VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU
                   WHICH IS NOW PENDING BEFORE THE III J.M.F.C., COURT
                   MANGALURU D. K., IN CR.NO.60/2024 MANGALURU WOMEN P.S.,
                   FOR THE OFFENCE P/U/S. 417, 376(2)(n), 506 OF IPC.

                         THIS CRIMINAL PETITION, COMING ON FOR ORDERS, THIS
                   DAY, ORDER WAS MADE THEREIN AS UNDER:
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                                            NC: 2024:KHC:44604
                                       CRL.P No. 7967 of 2024




CORAM:    HON'BLE MR JUSTICE S VISHWAJITH SHETTY


                        ORAL ORDER

Defacto complainant is before this Court under

Section 439(2) of Cr.P.C. with a prayer to cancel the bail

granted to respondent No.2 by the Court of VI Addl.

District & Sessions Judge, Dakshina Kannada, Mangalore

in Crl.Misc.No.550/2024 dated 16.07.2024.

2. Heard learned counsel for the parties.

3. FIR in Cr.No.60/2024 was registered by

Mangalore Women police station, Mangalore for the

offence punishable under sections 417, 376(2) (n) and

506 IPC against respondent No.2 on the basis of the first

information dated 06.06.2024 received from the victim

who is the petitioner herein. In the said case, the

respondent No.2 was arrested on 07.06.2024 and

remanded to judicial custody. His bail application filed

before the Court of VI Addl. District & Sessions Judge,

Dakshina Kannada, Mangalore in Crl.Misc.No.491/2024

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was rejected on 25.06.2024. Thereafter, a fresh bail

application was once again filed by respondent No.2 before

the very same Court in Crl.Misc.No.550/2024, which was

allowed on 16.07.2024. Challenging the same, the defacto

complainant is before this Court.

4. Learned counsel for the petitioner having

reiterated the grounds urged in the petition submits that

the successive bail application filed by respondent No.2

could not have been allowed by the very same learned

Sessions Judge, since there was absolutely no change in

circumstance. He submits even before the charge sheet

was filed in a case registered for heinous offence, learned

Sessions Judge has allowed the successive bail application.

The Hon'ble Supreme Court in catena of judgments has

held that successive bail application cannot be entertained

in the absence of any change in circumstance. Accordingly,

he prays to allow the petition.

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5. Per-contra, learned counsel appearing for

respondent No.2, who has filed his statement of objections

has opposed the petition. He submits that the first bail

petition of respondent No.2 was rejected, since the

learned Sessions Judge was of the impression that

respondent No.2 was a married man. Successive bail

application was therefore filed and the learned Sessions

Judge having appreciated this aspect of the matter has

allowed the petition and granted bail to respondent No.2.

He submits that respondent No.2 has no criminal

antecedents and considering the nature of the allegations

found in the first information, it cannot be said that the

learned Sessions Judge was not justified in granting

regular bail to respondent No.2.

6. First information was submitted by the petitioner

herein with allegation that respondent No.2 had sexual

intercourse with her, with a promise to marry her.

Subsequently, he had refused to marry her and he

allegedly had demanded dowry from her for the purpose of

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marrying her. FIR in Cr.No.60/2024 was registered against

respondent No.2 on the basis of the first information

received from the petitioner on 06.06.2024. Respondent

No.2 was arrested in the said case on 07.06.2024. His bail

application filed in Crl.Misc.No.491/2024 was rejected by

the learned Sessions Judge on 25.06.2024. On

28.06.2024, the second bail application in

Crl.Misc.No.550/2024 was filed by respondent No.2 herein

before the very same learned Sessions Judge, and vide

order impugned, said application was allowed.

7. From the perusal of the order passed by learned

Sessions Judge in Crl.Misc.No.491/2024 and also

Crl.Misc.No.550/2024, it is found that, there was

absolutely no change in circumstance of the case and

inspite of the same, the learned Sessions Judge has

allowed the successive bail application filed by respondent

No.2.

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8. It is trite that successive bail application can be

entertained only if there is change in circumstance, which

warrants consideration of successive bail application. In

the present case, the alleged offence is punishable with life

imprisonment. Even before the charge sheet is filed,

successive bail petition of respondent No.2 has been

allowed by the learned Sessions Judge, in the absence of

any material change in circumstance, which has a bearing

on merits of the case. The first bail petition filed by

respondent No.2 was rejected by the very same learned

Sessions Judge on 25.06.2024 and the second petition,

which was filed by respondent No.2 after a lapse of three

days from the said date was entertained by learned

Sessions Judge and respondent No.2 has been granted bail

in the successive bail application.

9. In the case of STATE OF MAHARASHTRA VS

CAPTAIN BUDDHIKOTA SUBHA RAO - 1990 SCC (Cri)

126, in paragraph 7, the Hon'ble Supreme Court has

observed that, "when we speak of change, we mean a

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substantial one which has a direct impact on the earlier

decision and not merely cosmetic changes which are of

little or no consequence. Between the two orders there

was a gap of only two days and it is nobody's case that

during these two days drastic changes had taken place

necessitating the release of the respondent on bail".

10. In the case of KALYAN CHANDRA SARKAR VS

RAJESH RANJAN ALIAS PAPPU YADAV & ANOTHER -

(2004)7 SCC 528, in paragraph 20, the Hon'ble Supreme

Court has observed as under:

"20. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. ......"

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11. In the case of KALYAN CHANDRA SARKAR VS

RAJESH RANJAN ALIAS PAPPU YADAV & ANOTHER -

(2005)2 SCC 42, in paragraph 20, the Hon'ble Supreme

Court as under:

"20. The decisions given by a superior forum, undoubtedly, are binding on the subordinate forum on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country."

12. In the background of the aforesaid judgments, if

the order impugned passed by the learned Sessions Judge

is examined, it is very clear that the respondent-accused

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had not made out any change in circumstance in the

successive bail application filed by him after a lapse of

three days from the date of rejection of his earlier bail

application. Therefore, the impugned order cannot be

sustained. Accordingly, the following order:

13. The petition is allowed. The order dated

16.07.2024 passed in Crl.Misc.No.550/2024 is set-aside

and the bail granted to respondent No.2 in Cr.No.60/2024