Karnataka High Court

Ms Kousalya D/O Late Divojigouda vs The State Of Karnataka on 24 January, 2025

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                                               CRL.P No. 102635 of 2024




              IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                    DATED THIS THE 24TH DAY OF JANUARY, 2025
                                     BEFORE
                      THE HON'BLE MR. JUSTICE S.RACHAIAH
                     CRIMINAL PETITION NO. 102635 OF 2024

             BETWEEN:

                  MS KOUSALYA
                  D/O LATE DIVOJIGOUDA
                  AGE: 28 YEARS, OCC: HOUSEWIFE
                  R/O: CHINTAKUNTA ROAD
                  BOMMANAHAL VILLAGE - 583 103.
                  TQ. AND DIST. BALLARI
                                                          ...PETITIONER
             (BY SRI. J BASAVARAJ, ADVOCATE)
             AND:

             1.   THE STATE OF KARNATAKA
                  (THROUGH MOKA P S )
                  BY STATE PUBLIC PROSECUTOR
                  HIGH COURT OF KARNATAKA
                  BENCH AT DHARWAD - 580 011.

Digitally    2.   SHRI. MALLIKARJUNGOUDA
signed by
NARAYANA          S/O LATE DODDANAGOUDA
UMA               AGE: 52 YEARS, OCC: AGRICULTURE
Location:
HIGH COURT        R/O: NEAR ESHWAR GUDI
OF                BOMMANAHAL VILLAGE - 583 103.
KARNATAKA
                  TQ. AND DIST. BALLARI
                                                        ...RESPONDENTS
             (BY SMT. MALA BHUTE, AGA FOR R1;
                 SRI. HANUMA REDDY, ADVOCATE FOR R2)

                  THIS CRIMINAL PETITION IS FILED U/SEC. 439(2) OF
             CR.P.C. 1973 (U/SEC. 483(3) OF BNSS, 2023) SEEKING TO
             CANCEL THE BAIL GRANTED IN FAVOUR OF THE RESPONDENT
             NO.2/ACCUSED NO.1 IN SC NO. 55/2024 (CRIME NO. 35/2024
             OF MOKA POLICE STATION) FOR THE ALLEGED OFFENCES
             P/U/SEC. 302, 323, 324, 504, 506 R/W SEC. 34 OF IPC.
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                                                    NC: 2025:KHC-D:1411
                                            CRL.P No. 102635 of 2024




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

CORAM:    THE HON'BLE MR. JUSTICE S.RACHAIAH

                            ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)

1. Heard Sri J.Basavaraj, learned counsel for petitioner and

Smt. Mala Bhute, learned Additional Government

Advocate for the respondent No.1 - State and

Sri Hanuma Reddy, learned counsel for respondent No.2.

2. This petition is filed by the petitioner, who is the daughter

of the deceased complainant, seeking for cancellation of

bail granted in favour of respondent No.2 / accused No.1

in Crime No.35/2024 of Moka police station.

Brief facts of the case are:

3. It is the case of the prosecution that the deceased

complainant had requested the Contractor to install

concrete road to the road which was being used by the

public. The Contractor asked him to remove the boulder

stones which were heaped up in front of the house of

respondent No.2. The deceased complainant had

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requested respondent No.2 to remove the stones,

however, it was not removed. On 18.03.2024, around

1.00 p.m., the complainant was getting the stones

removed from the place in order to facilitate the

Contractor to lay the concrete road. In the meantime,

respondent No.2 and his son objected to the said work

and started quarreling with the complainant.

4. It is stated that both respondent No.2 and his son had

assaulted the deceased complainant and caused injuries

to him. Immediately, the complainant was shifted to the

hospital for treatment. A statement was made in the said

hospital before the police. The jurisdictional police

registered a case in Crime No.35/2024 against both

persons for the offences under Sections 323, 324, 504,

506, 34 of the Indian Penal Code (for short 'IPC').

However, on the death of the deceased/complainant,

Section 302 of IPC has been incorporated.

5. It is the submission of learned counsel for the petitioner

that the respondent No.2 has committed a heinous

offence, though he secured bail on the strength of his

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overt-act, the bail was being misused by him, therefore,

the bail granted to the respondent No.2 has to be set

aside.

6. It is further submitted that the respondent No.2 is trying

to interfere with the trial and also trying to influence the

witnesses to depose on his behalf. In other words, he is

tampering the prosecution witnesses.

7. It is further submitted that granting bail in such a heinous

offence would require to be avoided as the Society is

watching the proceedings of the Court. In other words, it

would not have a good impact on the Society. Making

such submissions, learned counsel for the petitioner prays

to allow the petition and cancel the bail granted to

respondent No.2.

8. Learned Additional Government Advocate for respondent

No.1 - State adopted the submissions of learned counsel

for petitioner and prays to allow the petition and cancel

the bail granted to respondent No.2.

9. Per contra, learned counsel for respondent No.2

vehemently opposed said submissions and he further

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submitted that the granting of bail is absolutely a

discretionary power of the Court. Once such bail is

granted, it cannot be cancelled unless the conditions are

misused.

10. It is further submitted that mere making allegation of

tampering or hampering the proceedings of the Court,

that may not be a ground to reject the bail granted by

this Court. In fact, the overt act attributed against

respondent No.2 would indicate that respondent No.2 is

entitled for bail. Moreover, he is an aged person and he is

suffering from age old ailments. Therefore, the petition

filed by the petitioner has to be rejected. Making such

submissions, learned counsel for respondent No.2 prays

to reject the petition.

11. Having considered the rival submissions of learned

counsel for the respective parties, it is relevant to refer

the judgment of the Hon'ble Supreme Court in the case of

HIMANSHU SHARMA vs. STATE OF MADHYA PRADESH 1 in

paragraph Nos.10 and 11 read as under:-

(2024) 4 SCC 222

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"10. While cancelling the bail granted to the appellants, the learned Single Judge referred to this Court's judgment in Abdul Basit. However, we are compelled to note that the ratio of the above judgment favours the case of the appellants. That apart, the judgment deals with the powers of the High Court to review its own order within the limited scope of Section 362 CrPC. Relevant observations from the above judgment are reproduced below :

(Abdul Basit case SCC pp. 761-64, paras 14-21) "14. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e. the power to cancel the bail granted to an accused person.

Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation,

(v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,

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(vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last-mentioned case, one would expect very strong grounds indeed. (Raghubir Singh v. State of Bihar).

15. The scope of this power to the High Court under Section 439(2) has been considered by this Court in Gurcharan Singh v. State (UT of Delhi)

16. In Gurcharan Singh case this Court has succinctly explained the provision regarding cancellation of bail under the Code, culled out the differences from the Code of Criminal Procedure, 1898 (for short "the old Code") and elucidated the position of law vis- à-vis powers of the courts granting and cancelling the bail. This Court observed as under : (SCC pp. 123-24, para 16)

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'16. Section 439 of the new Code confers special powers on the High Court or Court of Session regarding bail. This was also the position under Section 498CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly, under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court.

Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person,

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already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it

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is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à- vis the High Court.'

17. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas. In the said case, this Court held (SCC p. 345, para 11) that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. In Narendra K. Amin v. State of Gujarat, the three-Judge Bench of this Court has reiterated the aforesaid principle and further drawn the distinction between the two in respect of relief available in review or appeal. In this case, the High Court had cancelled the bail granted to the appellant in exercise of power under Section 439(2) of the Code. In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case has observed that when irrelevant materials have been taken into consideration by the court

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granting order of bail, the same makes the said order vulnerable and subject to scrutiny by the appellate court and that no review would lie under Section 362 of the Code. In essence, this Court has opined that if the order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same court.

18. Reverberating the aforesaid principle, this Court in the recent decision in Ranjit Singh v. State of M.P. [Ranjit Singh v. State of M.P.,has observed that : (SCC p. 806, para 19) '19. ... There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court.'

19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation

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and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court.

20. In the instant case, the respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the petitioners herein by gross misrepresentation of facts, misleading the court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law.

21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or

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modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court."

11. Law is well settled by a catena of judgments rendered by this Court that the considerations for grant of bail and cancellation thereof are entirely different. Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail: