Karnataka High Court
Kantharaju S vs State By Karnataka on 6 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 2273 of 2024
C/W CRL.A No. 50 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 2273 OF 2024
C/W
CRIMINAL APPEAL No. 50 OF 2025
IN CRL.A No. 2273/2024
BETWEEN:
KANTHARAJU S
S/O SHANKARAPPA
AGED ABOUT 27 YEARS
R/AT No.77/1, TERMIS WORLD SCHOOL
KYALASANAHALLI, JIGANI, BANGALORE.
...APPELLANT
Digitally signed by
HEMAVATHY
GANGABYRAPPA (BY SRI VEERANNA G TIGADI, ADVOCATE)
Location: HIGH COURT
OF KARNATAKA
AND:
1. STATE OF KARNATAKA
REP BY HOSKOTE POLICE STATION
REP BY SPP
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
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CRL.A No. 2273 of 2024
C/W CRL.A No. 50 of 2025
2. CHANNAKESHAVA
S/O NAGARAJU
AGED ABOUT 31 YEARS,
RESIDING AT GANGAPURA VILLAGE
NANDAGUDI HOBLI
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT - 562 114.
...RESPONDENTS
(BY SMT. N ANITHA GIRISH, HCGP FOR R1
R2 IS SERVED AND UNREPRESENTED)
THIS CRL.A IS FILED UNDER SECTION 14(A) (2) OF SC/ST
(POA) ACT PRAYING TO SET ASIDE THE ORDER DTD 20.11.2024
PASSED BY THE HONBLE II ADDL. DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT BENGALURU IN
CRL.MISC.No.2306/2024 AND ENLARGE APPELLANT ON BAIL IN
SPL.C.No.910/2024 (CR.No.197/2024), FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302, 307 R/W 34 OF IPC,
SECTION 3(2) OF SC/ST (POA) ACT, 1989, ON THE FILE OF THE
HOSAKOTE P.S., PENDING BEOFRE THE HONBEL II ADDITIONAL
DISTRICT AND SESSION JUDGE, BANGALORE RURAL DISTRICT,
BANGLAORE AND ETC.,
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CRL.A No. 2273 of 2024
C/W CRL.A No. 50 of 2025
IN CRL.A No. 50/2025:
BETWEEN:
KANTHARAJU S
S/O SHANKARAPPA
AGED ABOUT 27 YEARS
R/AT No.77/1, TERMIS WORLD SCHOOL
KYALASANAHALI, JIGANI, BANGAOLROE.
...APPELLANT
(BY SRI VEERANNA G TIGADI, ADVOCATE)
AND:
1. STATE BY KARNATAKA
REP BY HOSKOTE POLICE STATION
REP BY SPP, HIGH COURT OF KARANTAKA
BANGAORE - 560 001.
2. CHANNAKESHVA
S/O NAGARAJU
AGED ABOUT 31 YEARS
GANGAPURA VILLAGE
NANDAGUDI HOBLI , HOSAKOTE TALUK
BANGAOLRE RURAL DISTRICT - 562 114.
...RESPONDENTS
(BY SMT. N ANITHA GIRISH, HCGP FOR R1
R2 IS SERVED AND UNREPRESENTED)
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CRL.A No. 2273 of 2024
C/W CRL.A No. 50 of 2025
THIS CRL.A IS FILED UNDER SECTION 14(A)(2) OF SC/ST
(POA) ACT PRAYING TO SET ASIDE THE ORDER DATED
08.11.2024 PASSED BY THE HON'BLE II ADDL. DISTRICT AND
SESSIONS JUDGE AND SPECIAL COURT, BENGLAURU RURAL
DISTRICT, BENGALURU IN CR.No.197/2024 AND ENLARGE THE
APPELLANT ON BAIL IN SPL.C.No.910/2024 (CR.No.197/2024)
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 307,
109, 114, 120(B) R/W 34 OF IPC, SEC.3(2)(v) OF SC/ST (POA)
ACT, 1989, ON THE FILE OF THE HOSAKOTE P.S., PENDING
BEFORE THE HONBLE II ADDITIONAL DISTRICT AND SESSION
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE AND ETC.,
THESE APPEALS COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
Crl.A.No.2273/2024 is filed by accused No.6 praying to
set aside the order dated 20.11.2024 passed by the II
Additional District and Sessions Judge, Bengaluru Rural
District, Bengaluru in Crl.Misc.No.2306/2024, whereunder
the bail petition of the appellant - accused No.6 sought in
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respect of Crime No.197/2024 pending in Spl.C.No.910/2024
registered for offences under Sections 302, 307, 109, 114
and 120B read with Section 34 of the IPC and Sections
3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989 came to be rejected.
2. Crl.A.No.50/2025 is filed by accused No.6 praying to
set aside the order dated 08.11.2024 passed by the II
Additional District and Sessions Judge and Special Court,
Bengaluru Rural District, Bengaluru in Crime No.197/2024,
whereunder the application of the appellant - accused No.6
filed under Section 167(2) of Cr.P.C., seeking grant of
statutory bail in respect of Crime No.197/2024 of Hosakote
Police Station came to be rejected.
3. Heard the learned counsel for the appellant and
learned HCGP for respondent No.1 - State. Inspite of
service of notice, respondent No.2 remained absent and
unrepresented.
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4. The case of the prosecution as per column No.17 of the
charge sheet is that there was rivalry in the vegetable
business between accused No.1 and the deceased
Sri.Naveen Kumar and in that regard there were quarrels
between them. The appellant - accused No.1 contacted
accused No.2 and told him that a lesson has to be taught to
the deceased Sri.Naveen Kumar. Accused No.2 has
contacted accused Nos.3 and 4 and all accused Nos.1 to 4
have held talks to finish the deceased Sri.Naveen Kumar and
in that regard, accused No.1 agreed to spend a sum of
Rs.10,00,000/-. In furtherance of the same, accused No.1
had paid Rs.50,000/- to accused No.2 as advance. In
furtherance of the conspiracy, accused Nos.3 to 6 agreed to
kill the said deceased Sri.Naveen Kumar. On 15.06.2024,
when the deceased was returning from the market, accused
Nos.3 to 6 in a Maruthi Zen Car bearing No.KA-04-Z-8991
stopped their car in front of the car of the deceased and the
deceased Sri.Naveen Kumar started quarrelling with them.
At that time, accused Nos.3 to 6 took iron rods kept in their
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car and all the four accused assaulted the deceased on his
head and chest, and the deceased succumbed to injuries on
the spot. At that time, they also threatened CW1 who was
with the deceased. Charge sheet has been filed against the
appellant - accused No.1 and the other accused for the
offences under Sections 302, 307, 109, 114, 120B r/w
Section 34 of IPC and Section 3(2)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989. The appellant - accused No.6 is in judicial
custody since 08.07.2024. The appellant - accused No.6
filed a bail petition in Crl.Misc.No.2306/2024 seeking bail in
respect of Crime No.197/2024 of Hosakote Police Station
and it came to be rejected by impugned order dated
20.11.2024. The said order has been challenged in
Crl.A.No.2273/2024. The appellant - accused No.6 had also
filed an application under Section 167(2) Cr.P.C., seeking
grant of statutory bail and the same came to be rejected by
impugned order dated 08.11.2024. The said order is
challenged by appellant - accused No.6 in Crl.A.No.50/2025.
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5. Learned counsel for the appellant in both appeals
would contend that the appellant - accused No.6 who was in
judicial custody has not been produced before the trial Court
either physically or through video conference and therefore,
he was not aware of his statutory right to file application
under Section 167(2) of Cr.P.C. The learned Special Judge
has not informed the appellant - accused No.6 of his
indefeasible right to apply for statutory bail under Section
167(2) of the Cr.P.C. The learned Special Judge has a duty
to inform the appellant - accused No.6 of his indefeasible
right, as held by the Hon'ble Apex Court in the case of
Hussainara Khatoon and Others (V) vs. Home
Secretary, State of Bihar, Patna reported in
(1980) 1 SCC 108.
6. He further contends that if indefeasible right was
informed by the Special Court to the appellant - accused
No.6, he ought to have filed his application under Section
167(2) of Cr.P.C. Without considering this aspect, the
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learned Special Judge has rejected the application filed by
the appellant - accused No.6 under Section 167(2) of Cr.P.C,
on the ground that the charge sheet has already been filed
prior to filing of the said application.
7. Learned counsel for the appellant contended that the
alleged incident has taken place at 4.50 a.m. on 16.06.2024
and eyewitness to the said incident is CW.No.1/complainant
and he has not stated/identified the name of assailants in his
statement. The Investigating Officer has not conducted test
identification parade after arrest of the accused persons.
The accused persons have been identified by CW.1 in police
station. So what was the basis for arrest of this appellant
and other accused is not forthcoming from records of the
prosecution. There is no motive for appellant - accused
No.6 to commit murder of deceased Sri.Naveen Kumar.
Accused No.1 has been granted bail by this Court in
Crl.A.No.1912/2024, against him there is a specific motive of
business rivalry between the deceased and accused No.1.
Accused No.2 has also been granted bail by the trial Court.
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Accused Nos.4 and 5 have also been granted statutory bail
by the trial Court. Considering all these aspects, appellant -
accused No.6 is entitled for grant of bail. Thus, he prayed to
allow the appeals and grant a bail to the appellant - accused
No.6.
8. Learned HCGP for respondent No.1 - State would
contend that application under Section 167(2) of Cr.P.C.,
has been filed after filing of the charge sheet and
considering the same, the learned Special Judge has rightly
rejected the said application. After filing of the charge
sheet, the accused has no right to seek grant of statutory
bail under Section 167(2) of Cr.P.C. He further contended
that offence alleged against appellant - accused No.6 is a
serious offence punishable with death or imprisonment for
life and the assault by the appellant and other accused on
the deceased is with deadly weapon. CW.1/complainant is
the eyewitness and he has identified appellant - accused
No.6 and other accused and his further statement has been
recorded. The charge sheet material shows prima facie
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against appellant - accused No.6. Considering all these
aspects, the learned Special Judge has rightly rejected the
bail petition. With this, she prayed for dismissal of both the
appeals.
9. Having heard the learned counsels, the Court has
perused the impugned orders and the charge sheet material
placed on record.
10. The appellant - accused No.6 is in judicial custody since
08.07.2024. On perusal of the record, it indicates that
charge sheet has been filed on 07.10.2024. The trial Court,
while passing order on application filed by accused Nos.4
and 5 under Section 167(2) of Cr.P.C., has observed that as
accused are in judicial custody from 08.07.2024, the
statutory period of 90 days expires on 05.10.2024. The
present appellant - accused No.6 is also in judicial custody
since 08.07.2024. The certified copy of the order sheet
produced by the learned counsel for the appellant indicates
that the appellant has not been produced either physically or
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through video conference before the Special Court on the
dates of hearing. The appellant - accused No.6 has filed an
application under Section 167(2) of Cr.P.C. On the ground
that application filed by accused No.6 is after filing of the
charge sheet, the learned Special Judge has rejected the
application filed by appellant - accused No.6 under Section
167(2) of Cr.P.C. The Hon'ble Apex Court in the case of
Hussainara Khatoon (Supra) has observed thus:
"It is apparent from these charts that some of the
petitioners and other undertrial prisoners referred to
in these charts have been produced numerous times
before the Magistrates and the Magistrates have been
continually making orders of remand to judicial
custody. It is difficult to believe that on each of the
countless occasions on which these undertrial
prisoners were produced the Magistrates and the
Magistrates made orders of remand, they must have
applied their mind to the necessity of remanding
those undertrial prisoners to judicial custody. We are
also very doubtful whether on the expiry of 90 days
or 60 days, as the case may be, from the date of
arrest, the attention of the undertrial prisoners was
drawn to the fact that they were entitled to be
released on bail under proviso (a) of sub-section (2)
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of Section 167. When an undertrial prisoner is
produced before a Magistrate and he has been in
detention for 90 days or 60 days, as the case may be,
the Magistrate must, before making an order of
further remand to judicial custody, point out to the
undertrial prisoner that he is entitled to be released
on bail."
11. The Hon'ble Apex Court in the case of M.Ravindran vs.
Directorate of Revenur Intelligence reported in
(2021) 2 SCC 485 has observed thus:
"We agree with the view expressed in Rakesh Kumar
Paul (supra) that as a cautionary measure, the counsel for
the accused as well as the magistrate ought to inform the
accused of the availability of the indefeasible right under
Section 167(2) once it accrues to him, without any delay.
This is especially where the accused is from an
underprivileged section of society and is unlikely to have
access to information about his legal rights. Such
knowledgesharing by magistrates will thwart any dilatory
tactics by the prosecution and also ensure that the
obligations spelled out under Article 21 of the Constitution
and the Statement of Objects and Reasons of the CrPC are
upheld."
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12. Considering the said decisions of the Hon'ble Apex
Court, it is a duty on the learned Magistrate to inform the
accused of the availability of indefeasible right under Section
167(2) of Cr.P.C once it accrues to him, without any delay.
The Hon'ble Apex Court has not dealt with, as to, if this duty
of the learned Magistrate is not performed whether the
accused who has not filed application under Section 167(2)
Cr.P.C., is entitled for grant of statutory bail.
13. Therefore, it cannot be said that merely because the
Special Judge has not informed the indefeasible right under
Section 167(2) Cr.P.C., to the accused, he is entitled for
grant of statutory bail if he makes an application subsequent
to filing of charge sheet. The learned Special Judge
considering the aspect that the application filed by appellant
- accused No.1 is after filing of the charge sheet has rightly
rejected the application filed by the appellant - accused No.6
under Section 167(2) of Cr.P.C.
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14. There was no motive for this appellant - accused No.6
to commit the murder of the deceased Sri.Naveen Kumar.
The motive was against accused No.1, as he has having
business rivalry with the deceased Sri.Naveen Kumar. It is
the case of the prosecution that accused Nos.1 and 2 have
engaged accused Nos.3 to 6 to commit the murder of the
deceased Sri.Naveen Kumar. In furtherance of the same,
accused Nos.3 to 6 alleged to have assaulted the deceased
with deadly weapon and committed his murder. CW.1 - the
complainant is only eyewitness to the alleged incident.
CW.1 who has filed the complaint did not identify the
assailants at the time of incident, as they were not
acquainted with him. What is stated by CW.1 in his
complaint is that four persons came in a car and they
assaulted the deceased Sri.Naveen Kumar with iron rod and
the said four persons are unknown to him. Accused Nos.3 to
6 have been arrested on 08.07.2024 and they were shown
to CW.1 in police station, wherein he has identified them as
assailants. As the assailants were not the persons
acquainted with the complainant - CW.1, the Investigating
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Officer ought to have held test identification parade. As to
what was the basis for arrest of accused persons is not
forthcoming in the charge sheet records. CW.1 in his further
statement recorded on 08.07.2024 has stated that he has
been shown four persons in police station and he identified
them as assailants. He further stated that he came to
known their names through police. After considering the
fact that accused No.1, who had motive to commit murder of
deceased - Sri.Naveen Kumar has been granted bail and
accused Nos.4 and 5, who are alleged to be assailants with
appellant - accused No.6 have also been granted statutory
bail. This appellant - accused No.6 is also entitled for grant
of bail. Without considering this aspect, the learned Special
Court has erred in rejecting his bail petition filed under
Section 439 of Cr.P.C. The appellant - accused No.6 has
made out grounds for setting aside the impugned order
dated 20.11.2024 and grant of bail in Crime No.197/2024 of
Hosakote Police Station with conditions. In the result, the
following:
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ORDER
The Crl.A.No.50/2025 is dismissed.
Crl.A.No.2273/2024 is allowed and the impugned order
dated 20.11.2024 passed by the II Additional District and
Sessions Judge, Bengarluru Rural, Bengaluru in
Crl.Misc.No.2306/2024 is set aside. The appellant - accused
No.6 is granted bail in Crime No.197/2024 of Hosakote
Police Station pending in Spl.Case No.910/2024 on the file
of the II Additional District and Sessions Judge, Bengalruru
Rural District, Bengaluru, subject to the following conditions:
i) The appellant - accused No.6 shall execute a
personal bond for a sum of Rs.1,00,000/-
(Rupees One lakh only/-) with one surety for
the likesum to the satisfaction of the Trial
Court;
ii) The appellant - accused No.6 shall not tamper
the prosecution witnesses;
iii) The appellant - accused No.6 shall appear
before the Trial Court on all dates of hearing,
unless exempted and co-operate in speedy
disposal of the case; and
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iv) The appellant - accused No.6 shall not involve
in commission of any offence during the
pendency of the case registered against him.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
KG
